Docket: IMM-6784-14
Citation:
2015 FC 54
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, January 15, 2015
PRESENT: The Honourable Mr. Justice Simon Noël
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BETWEEN:
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FRANCIS MBAIOREMEM
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application by the applicant to
[translation]
[o]btain the reasons for the decision of the
Minister of Public Safety and Emergency Preparedness not to respect Canada’s
international law obligations under the United Nations’ International
Covenant on Civil and Political Rights and to remove the applicant despite
the risk to his life.
[2]
As submitted, this application does not pass the
clean hands test; in addition, it has no merit, for at least two reasons:
- Following an order by Justice St-Louis dated June 4, 2014,
dismissing his application for a stay, the applicant had to report for
removal on June 10, 2014, which he failed to do. Consequently, a
warrant for the applicant’s arrest was issued, and, for the time being, it
is impossible to execute the warrant. The applicant is not complying with
Canada’s laws, and he is sought for a legal proceeding. To present his application,
he has not come before the Court with clean hands. Furthermore, he signed
an affidavit in support of the application in which he provided an address
as his home. Upon verification, the evidence reveals that he does not
reside at this address. For these reasons, the application does not have
to be heard. However, in order to end this dispute once and for all, I
conclude that the application has no merit and that it should be dismissed
for the following reasons.
- The application for the reasons underlying the Minister’s
decision dated May 23, 2014, should have been made in docket No. IMM-4198-14,
in which an application for a stay of removal was made and denied in an
order by Justice St-Louis dated June 4, 2014. The application
for leave and judicial review (ALJR) of the Minister’s decision associated
with the application for stay was dismissed by Chief Justice Crampton
because of the applicant’s failure to file his record on August 28,
2014. The Minister’s decision dated May 23, 2014, not to stay the
applicant’s removal despite the recommendation of the Human Rights Committee
of the United Nations Office of the High Commissioner for Human Rights was
debated in the context of the stay application (see the order of Justice St-Louis
dated June 4, 2014). In this proceeding, the applicant wishes to
obtain the reasons for the same decision of the Minister, a subject that
should have been addressed as part of the proceeding in docket No. IMM-4198-14.
In not filing his record for the ALJR, the applicant waived debate of the
present application. The application is a duplication of proceedings. In
fact, the same issue is being relitigated, which is akin to an abuse of
process and brings into question res judicata.
- More importantly, however, since November 2010, the
applicant has benefitted from a refugee protection claim, an application based
on humanitarian and compassionate (H&C) considerations, two
pre-removal risk assessment (PRRA) applications, three stay applications
and, as a result of his ALJRs, more than five Federal Court decisions and
orders:
(a) Refugee protection claim, November 2010, rejected by the
Refugee Protection Division (RPD) on the basis of a lack of credibility;
(b) decision of the Federal Court (Justice Shore), September 2011,
dismissing the ALJR of the RPD’s decision (Francis v Canada (Citizenship and
Immigration), 2011 FC 1078);
(c) H&C application rejected on July 25, 2012;
(d) order of the Federal Court (Justice Mosley) dismissing the ALJR
of the H&C application, dated March 21, 2013;
(e) first PRRA application rejected in May 2012;
(f) first stay application associated with the rejection of the PRRA
decision allowed by Justice Tremblay-Lamer in December 2012;
(g) decision of the Federal Court (Justice Scott) setting aside the
PRRA decision, dated July 2013 (Mbaioremem v Canada (Citizenship and
Immigration), 2013 FC 791);
(h) second PRRA application rejected on November 20, 2013;
(i) second stay application associated with the rejection of the second
PRRA decision dismissed by the undersigned on December 14, 2013;
(j) order of the Federal Court (Justice Mosley) dismissing the ALJR of
the second PRRA decision;
(k) third stay application (IMM-4198-14) associated with the ALJR of the
Minister’s oral decision to remove the applicant dated May 23, 2014,
dismissed (the order to dismiss being dated June 4, 2014, and signed by
St-Louis J.);
(l) in connection with the ALJR (IMM-4198-14) of the Minister’s decision
dated May 23, 2014, a copy of this decision was sent to the Court under
section 9 of the Federal Courts Citizenship, Immigration and Refugee
Protection Rules, SOR/93-22. The applicant subsequently informed the Court
Registry that he would turn to the Court to obtain the reasons underlying the
decision dated May 23, 2014. In the same proceeding, on August 28,
2014, Chief Justice Crampton dismissed the ALJR on the basis that the
applicant had failed to file his record;
(m) on September 22,
2014, the applicant filed a new ALJR of the same decision of the Minister dated
May 23, 2014, which was the subject of the ALJR in docket No. IMM-4198-14;
ALJR dismissed in an order by Chief Justice Crampton for failure to file
his record, dated August 28, 2014.
- As demonstrated by the many proceedings instituted by the
applicant, as described above, the applicant fully benefitted from the
administrative and judicial remedies available in immigration law. In
addition, given that a warrant for the applicant’s arrest has been issued
and that the purpose of the latest application is to obtain the reasons
underlying the decision dated May 23, 2014, the subject of docket No.
IMM-4198-14, this application not only is akin to an abuse of process considering
the history and quantity of the proceedings and the duplication of the
issue in this case compared with the previous file, but also violates the
principle of res judicata.
- There is a limit to what the applicant can do to defend his
rights. The legal system is not an arena where anything is allowed,
without boundaries. Unless there is a successful constitutional challenge,
the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA],
must be respected if one wishes to benefit from its remedies and
protection. In the case at bar, the applicant is showing no respect for Canada’s
laws and can therefore not avail himself of other remedies unless there has
been a change in the facts, which is by no means apparent here.
- For the reasons above, namely, duplication of proceedings,
abuse of process and res judicata, the application is dismissed. In
addition, the applicant did not submit his application with clean hands.
- At the
respondent’s request, the respondent’s name shall be changed to Minister
of Public Safety and Emergency Preparedness, and the style of cause will
be amended accordingly.
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