Date: 20071029
Docket: IMM-2718-07
Citation: 2007 FC 1115
Ottawa, Ontario, October 29,
2007
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
AMPARO
TORRES VICTORIA
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND
EMERGENCY
PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Amparo
Torres Victoria is the
subject of an inadmissibility proceeding currently pending before the
Immigration Division of the Immigration and Refugee Board. That hearing has
proceeded, in part, on the basis of evidence which has not been provided to
either Ms. Torres or to her counsel.
[2]
Ms.
Torres now seeks an order staying the Immigration Division proceedings. She
asks that these proceedings be stayed pending the determination of her
application for judicial review of an interlocutory decision of the Immigration
Division refusing to dismiss the proceedings against her. The Immigration
Division had rejected Ms. Torres’ argument that the process followed in her
case, which involved the use of “secret evidence” was unfair, in light of the
decision of the Supreme Court of Canada in Charkaoui v. Canada (Minister of
Citizenship and Immigration), [2007]
1 S.C.R. 350, 2007 SCC 9.
[3]
For
the reasons that follow, the motion for a stay is dismissed.
Background
[4]
Ms.
Torres is a citizen of Colombia. She came to this
country in 1996, and obtained permanent residence in Canada as a
Convention refugee accepted abroad.
[5]
Ms.
Torres is the subject of a report under subsection 44(1) of the Immigration
and Refugee Protection Act, S.C. 2001 c. 27. This report alleges that she
is a member of a terrorist organization, namely the Fuerzas Armadas
Revolucionarias de Colombia (or “FARC”).
[6]
This
report was referred to the Immigration Division of the Immigration and Refugee
Board for an admissibility hearing, in accordance with subsection 44(2) of the
Act. Following a two day in camera hearing in May of 2005, the
Minister obtained an order pursuant to sections 86 and 78 of IRPA for
the non-disclosure of confidential information relied upon in support of the
section 44 report.
[7]
Ms.
Torres was provided with a summary of the confidential information, a document
that consists of 16 paragraphs. Much of the document consists of generic
information relating to FARC. The disclosed information discusses Ms. Torres’
political activities in Colombia, but does not identify
information directly pointing to her membership in FARC. The summary does,
however, make reference to the fact that members of Ms. Torres’ immediate
family are FARC members.
[8]
Ms.
Torres was also provided with documentary evidence regarding conditions within Colombia.
[9]
The
public portion of Ms. Torres’ admissibility hearing then commenced, continuing
over six sittings.
[10]
In
August of 2005, Ms. Torres brought a motion before the Immigration Division.
Amongst other things, she asked for greater disclosure of the confidential
information. She also asked to have the confidential portion of the
proceedings re-heard, with the benefit of an amicus curiae appointed to
test the evidence. That request was denied.
[11]
Over
the course of the proceedings, Ms. Torres also brought motions seeking, amongst
other things, a more detailed summary of the confidential evidence, specific
disclosure of exculpatory documents that Ms. Torres believed were in the
possession of the respondent, and the production of witnesses for
cross-examination. Each of these requests was refused by the Immigration
Division.
[12]
It
appears that after Ms. Torres had completed her testimony, and prior to the
completion of the hearing, the Immigration Division also received submissions
from the Crown, in camera.
[13]
The
admissibility hearing was completed in September of 2006, and the presiding
member reserved his decision. Before a final decision was handed down in this
case, however, the Supreme Court of Canada rendered its decision in Charkaoui.
[14]
Relying
upon Charkaoui, Ms. Torres then brought a motion before the Immigration
Division, seeking the summary dismissal of the inadmissibility proceedings on
the basis that the procedure that had been followed in her case had been
unfair. In the alternative, Ms. Torres asked that the proceeding before the
Immigration Division be suspended, pending her application to the Federal Court
for an order staying the proceedings. On June 28, 2007, the Immigration
Division dismissed Ms. Torres’ motion.
[15]
Ms.
Torres then brought an application for leave and for judicial review of the
Board’s interlocutory decision. This application is still pending before this
Court.
[16]
On
July 10, 2007, Ms. Torres brought a motion in this Court, on an urgent basis,
seeking to stay the Immigration Division proceedings pending the determination
of her application for judicial review. Justice Campbell heard this motion on
July 16, 2007. That same day, he issued an interlocutory order prohibiting the
Immigration Division from rendering a decision in Ms. Torres’ case until such
time as the motion for a stay could be heard and finally determined.
[17]
Justice
Campbell’s reasons simply note that this was done to preserve the status quo
pending the hearing of this motion. His interlocutory order remains in force,
pending my decision in this matter.
The Prematurity Issue
[18]
Counsel
for the respondent points out that Ms. Torres’ underlying application for leave
and for judicial review relates to an interlocutory decision of the Immigration
Division. Interlocutory decisions are generally not subject to judicial
review, unless they relate to either the jurisdiction of the tribunal in
question, or to the impartiality of the presiding member, neither of which is
in issue in this case. As a consequence, the respondent says, this Court
should not even entertain the motion for a stay.
[19]
I
agree with counsel for the respondent that, as a general proposition, in the
absence of special circumstances, interlocutory rulings made by administrative
tribunals should not be challenged until the tribunal has rendered its final
decision: see Zündel v. Canada (Human Rights Commission) [2000] 4 F.C.
255, 256 N.R. 125 (F.C.A.), at ¶10 and Szczecka v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 934, 116 D.L.R. (4th) 333 at
335.
[20]
There
are a number of reasons why this is so, including the fact that the application
may be rendered moot by the ultimate outcome of the case, and the risk of the
fragmentation of the process, with the accompanying costs and delays.
[21]
As
to what may be considered to be “special circumstances”, Justice Sharlow gave
the following examples in Canada (Canadian Human Rights Commission) v.
Canada 3000 Airlines Ltd. (re Nijjar), [1999] F.C.J. No. 725, where she
stated at ¶15 that:
Special circumstances may exist if
judicial review of the impugned decision is dispositive of a substantive right
of a party (Canada v. Schnurer Estate, [1997] 2 F.C. 545 (F.C.A.)), or if
judicial review is sought on a question that goes to the legality of the
tribunal itself (Cannon v. Canada, [1998] 2 F.C 104 (F.C.T.D) ...
[22]
I
do not, however, read the jurisprudence relating to the issue of prematurity to
say that an application for judicial review of an interlocutory decision of an
administrative tribunal is void from the outset. Rather, the Court may
exercise its discretion to decline to entertain the application.
[23]
I
am prepared to exercise my discretion to entertain Ms. Torres’ request for a
stay. That said, it seems to me that the question of prematurity may have a
bearing on each of the elements of the tripartite injunctive test, and will
thus be addressed in that context.
Has Ms. Torres
identified a Serious Issue in This Case?
[24]
Ms.
Torres submits that the Supreme Court of Canada has recognized that the process
followed in her case is unfair, and violates her section 7 Charter
rights. While acknowledging that she is not subject to a security certificate,
Ms. Torres submits that the Supreme Court’s reasoning in Charkaoui is
equally applicable in this case.
[25]
Moreover,
Ms. Torres submits that the public safety considerations that led the Supreme
Court of Canada to suspend its declaration of invalidity for a year in Charkaoui
do not arise in this case. As a result, Ms. Torres argues that the Supreme
Court’s decision in Charkaoui should have immediate effect in this case.
[26]
It
is generally neither desirable nor appropriate to engage in a prolonged
discussion of the merits of a case on a motion for a stay: RJR-MacDonald
Inc. v. Canada (Attorney General), [1994] 1
S.C.R. 311, at ¶50. Rather, the Court must be satisfied that the underlying
application is neither frivolous nor vexatious.
[27]
With
this in mind, I am satisfied that Ms. Torres has established the existence of
at least one potential serious issue as to the fairness of the process followed
in this case in relation to the confidential evidence.
[28]
In
coming to this conclusion, I would note that the fact that the Supreme Court
chose to suspend its remedy in Charkaoui does not take away from the
legitimacy of the concerns as to fairness of the process in either that case or
in this.
[29]
Moreover,
I do not agree with the respondent that this Court’s decision in Segasayo v.
Canada (Minister of
Public Safety and Emergency Preparedness), 2007 FC 372 is
necessarily determinative of this case. In this regard, I would simply note
that there are arguably material differences between Ms. Torres’ case and the
circumstances in issue in Segasayo.
[30]
These
differences include the fact that the amount of redacted material in issue in Segasayo
was evidently very limited, relative to the entirety of the record. The
respondent has not suggested that this is so in this case. Moreover, the
section 78 process was applied only by analogy in Segasayo, which did
not involve an inadmissibility hearing but rather an application for
ministerial relief. Section 78 of IRPA is directly applicable in this
case.
[31]
As
a consequence, I am satisfied that Ms. Torres has potentially satisfied the
serious issue component of the test for a stay. I also recognize, however,
that the issue may not end up having any practical implications for Ms. Torres,
given that we do not know how the Immigration Division will ultimately rule, or
what the basis for the Board’s decision will be. I will return to this concern
in my consideration of where the balance of convenience lies in this case.
Irreparable Harm
[32]
Ms.
Torres asserts that she will suffer profound emotional harm if she is found to
be a “terrorist”, based upon a process in which she could not meaningfully
contest the evidence against her. Not only will her reputation be irreparably
damaged, she says that a finding that she is a terrorist will put her family in
Colombia at significant
risk.
[33]
She
also asserts that allowing a decision to be made in her case based upon a
process that has been found by the Supreme Court of Canada to be unfair would
result in irreparable harm to the Canadian justice system, and “would be a
stain on Canada’s history”.
[34]
Ms.
Torres further contends that allowing the Immigration Division to determine
that she is a member of a terrorist organization will set the removals process
in motion, further causing her irreparable harm.
[35]
Finally,
she says that she has limited financial resources to spend on the continuing
defence of a hearing that would inevitably be declared unlawful.
[36]
Proof
of irreparable harm must be clear and not speculative: see, for example, Nature
Co. v. Sci-Tech
Educational Inc. (1992), 41 C.P.R. (3d) 359 at 367. Given that we do not
know what the outcome of the Immigration Division proceedings will be, all of
Ms. Torres’ claims of irreparable harm are entirely speculative at this point.
[37]
Moreover,
even if Ms. Torres is found to be inadmissible to Canada by the Immigration
Division, given the number of steps still to be taken in the removals process,
there is no realistic prospect that Ms. Torres will be removed to Colombia between now
and the time that her application for judicial review is finally disposed of.
[38]
As
a consequence, Ms. Torres has not satisfied the second branch of the tripartite
test for granting a stay.
Balance of Convenience
[39]
I
am also not persuaded that the balance of convenience favours granting the
stay. As was noted earlier, the underlying decision of the Immigration
Division was an interlocutory one, and thus the application for judicial review
is arguably premature.
[40]
We
have no way of knowing at this juncture how the proceedings before the
Immigration Division will play themselves out. It remains possible that the
Immigration Division will rule in Ms. Torres’ favour, in which case her
application for judicial review would potentially be rendered moot.
[41]
It
is also possible that even if the Immigration Division finds Ms. Torres to be
inadmissible, in doing so it may choose to rely only on the public record, and
to disregard the confidential evidence, again arguably rendering Ms. Torres’
concerns moot.
[42]
Moreover,
if the process employed by the Immigration Division does not satisfy the
requirements of the Charter and procedural fairness, this can be
addressed and corrected on the judicial review of the merits of the Immigration
Division’s decision.
[43]
In
these circumstances, I find that the balance of convenience favours allowing
the Immigration Division to complete its task, and to render a decision in Ms.
Torres’ case.
Conclusion
[44]
Having
failed to demonstrate that she would suffer irreparable harm unless a stay is
granted, or that the balance of convenience favours the granting of the stay,
it follows that the motion must be dismissed.
Certification
[45]
Counsel
for Ms. Torres suggests that there is some doubt as to whether it is open to
this Court to certify questions for the Federal Court of Appeal in relation to
an interlocutory order such as this.
[46]
That
said, Ms. Torres refers to this Court’s recent decision in Harkat v. Canada (Minister of
Citizenship and Immigration), 2007 FC 508, where the Court stayed a
security certificate proceeding pending Parliament’s legislative response to
the Charkaoui decision. In Harkat, the Court certified a series
of questions for the Federal Court of Appeal, and Ms. Torres submits that I
should do likewise in this case.
[47]
In
my view, the Court’s decision in Harkat is distinguishable from the
present case in that the stay that was granted in Harkat had the effect
of permanently staying the security certificate proceedings brought under the
current legislative regime. As such, it was arguably a final decision.
[48]
In
contrast, what is sought in this case is a conventional interim stay, putting
the Immigration Division proceedings on hold pending the determination of Ms.
Torres’s application for leave and for judicial review.
[49]
My
order dismissing the motion for a stay is unquestionably an interlocutory order
made in the context of the underlying application for judicial review. With
this in mind, the law is clear: that is, no appeal lies to the Federal Court of
Appeal in relation to an interlocutory judgment of this Court made in a proceeding
under the Immigration and Refugee Protection Act. In this regard see
paragraph 72(2)(e) of Immigration and Refugee Protection Act, Canada
(Minister of Citizenship and Immigration) v. Edwards, 2005 FCA
176 and Kocak v. Canada (Minister of
Citizenship and Immigration), 2006 FCA 54.
[50]
As
a consequence, I do not think that it is open to me to certify the questions
proposed by Ms. Torres.
[51]
That
said, even if it were open to me to do so, I would not, in any event, have
certified the questions proposed by Ms. Torres. While the final decision in
this case may or may not ultimately raise issues of general importance, I have
not finally decided any legal issues on this motion. I have simply found that
Ms. Torres has met the low threshold for establishing that a serious issue
arises in her case.
[52]
Moreover,
my analysis of the issue of irreparable harm is fact-specific, and my
assessment of the question of the balance of convenience requires the weighing
of a number of factors, including the circumstances of Ms. Torres’ personal
situation.
[53]
As
such, I am not persuaded that it is appropriate to certify the questions
proposed by Ms. Torres, and I decline to do so.
Costs
[54]
Ms.
Torres asks for her costs in any event of the cause, submitting that she is
neither poor enough to qualify for legal aid, nor wealthy enough to fund Charter
litigation.
[55]
I
decline to make any order of costs at this stage in this proceeding, and will
leave the matter of costs to be dealt with by the judge dealing with the merits
of the application for judicial review, should leave be granted.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this motion is dismissed.
“Anne
Mactavish”
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