Date: 20110524
Docket: IMM-3201-10
Citation: 2011 FC 606
Ottawa, Ontario, May 24,
2011
PRESENT: The
Honourable Mr. Justice Harrington
BETWEEN:
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JUAN JOSE BELTRAN
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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SUPPLEMENTAL REASONS FOR ORDER
AND ORDER
[1]
In
my initial reasons for order, 2011 FC 516, I directed Mr. Beltran’s counsel to
prepare for endorsement a draft order to implement the said reasons, which were
that it would be an abuse of process to allow the admissibility hearing to
continue. Counsel has provided such a draft, approved as to form and content by
counsel for the respondent Minister. The order shall be endorsed.
[2]
I
also gave the Minister a delay to propose a serious question of general
importance which could support an appeal to the Court of Appeal. The Minister
has proposed two questions. Mr. Beltran submits that neither should be
certified.
[3]
The
questions are:
a. Is a
permanent stay of proceedings before the Immigration Division of the
Immigration and Refugee Board of Canada, which has the effect of binding the
Canada Border Services Agency in addition to the Immigration Division, an
appropriate remedy where the applicant has not first challenged the referral of
the report by the CBSA under section 44 of the Immigration and Refugee
Protection Act?
b. In
determining whether to grant a permanent stay of the hearing based on a view
that the CBSA should not be allowed to proceed before the Immigration Division,
is the Federal Court entitled to examine the actual merits of the case to be
presented to that division?
[4]
In
my opinion, the goal of a judicial review of a section 44 report is to right a
wrong quite different from that targeted by a permanent stay of proceedings. A judicial
review targets the reasonableness (or in some cases, the correctness) of a
decision. A permanent stay has nothing to do with the reasonableness of that
decision. Rather, its purpose is to halt an abuse of process. Furthermore, a
stay is based on a different record as set out at paragraphs 31 and 32 of my
initial reasons. The Minister proposes a two-stage process. If leave was not
granted or if leave was granted and then the judicial review was dismissed, Mr.
Beltran would still have been able to move for a permanent stay on the grounds
of an abuse of process. In my opinion, adding such a step would unnecessarily
complicate the process and create additional expense for both parties, an
expense Mr. Beltran may not be in position to bear. We must be attuned to
fundamental access to justice through procedures that minimize unnecessary
costs and complexity (Canada (Attorney General) v
TeleZone Inc., 2010 SCC 62).
[5]
As
to the second question, one might well think that the purpose of the exercise
was to examine the actual merits of the case. However, the purpose was rather
to determine whether, and if so, the extent to which, Mr. Beltran’s defence was
prejudiced by the passage of time attributable to inaction on the part of the
Minister. That point was made at paragraphs 39 and 40 of my initial reasons.
Thus, the second question simply does not arise.
[6]
An
analysis of the material to be presented to the Immigration Division showed
that alliances within protest groups in El Salvador were
constantly shifting. Mr. Beltran’s involvement with LP-28 was a snapshot in
time. Mr. Beltran’s understanding was that LP-28 was not part of FMLN but
rather was part of FDR, see paragraph 44 of the initial reasons.
[7]
The
delays on the part of the Minister would have made it difficult, if not
impossible, for Mr. Beltran to properly defend himself.
[8]
Mr.
Beltran’s counsel makes the point, with which I also agree, that this case is
simply too fact-specific to raise an issue of general importance.
ORDER
IT IS HEREBY ORDERED THAT:
1.
The
Court declares that the admissibility proceeding against the applicant based on
the s. 44(1) report signed on February 18, 2009, constitutes an abuse of
process.
2.
The
Minister is prohibited from issuing any further s. 44(1) reports against the
applicant regarding an allegation of inadmissibility under s. 34(1) (f) due to
his membership in the Ligas Populares 28 de Febrero (the 28th of
February Popular Leagues) (LP-28), unless the Minister obtains new, credible
and trustworthy evidence about his membership in the LP-28 that the Minister
would not otherwise have obtained prior to the date of this order through due
diligence efforts.
3.
The
Immigration Division of the Immigration and Refugee Board of Canada is
prohibited from continuing the admissibility hearing against the applicant
based on the s. 44(1) report signed on February 18, 2009 and from commencing
any other admissibility hearing based on a s. 44(1) report regarding an
allegation of inadmissibility under s. 34(1)(f) due to his membership in the
LP-28, unless the Minister obtains new credible and trustworthy evidence about
his membership in the LP-28 that the Minister would not otherwise have obtained
prior to the date of this order through diligence efforts.
“Sean Harrington”
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