Date: 19981202
Docket: IMM-6021-98
BETWEEN:
ZOLMAY ZOLFIQAR
Plaintiff
- and -
HER MAJESTY THE QUEEN
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendants
REASONS FOR ORDER
(Delivered orally from the Bench at Toronto,Ontario on
Friday, November 27, 1998, as edited)
ROTHSTEIN J.
[1] This is an application for an interim injunction in an action brought by the plaintiff to enjoin the Minister of Citizenship and Immigration from deporting him at 7:45 this evening. In the action, the plaintiff seeks to demonstrate that the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being schedule B of the Canada Act 1982 (UK), 1982, c.11, requires that the process for removing a person who asserts a risk of torture should include a risk assessment and that the current process does not. The plaintiff says that if a risk assessment determined that an individual is at risk of torture, the Charter requires that he not be deported to a country where the risk is present.
[2] The plaintiff is from Afghanistan. He is Tajik. He came to Canada in 1988, was found to have a credible basis for a refugee claim, and was granted landing in 1992. In 1995 he was convicted of importing 3 - 3/4 pounds of heroin and sentenced to 10 years' imprisonment.
[3] In April 1996 the Minister declared the Plaintiff to be a danger to the public for purposes of subsection 70(5) and paragraph 46.01(1)(e) of the Immigration Act,R.S.C. 1985, C. I-2.
[4] In 1997, a deportation order was issued for the plaintiff. The plaintiff was paroled on or about October 28, 1998. At that time he was advised he was to be removed to Afghanistan. The removal was scheduled for November 7, 1998. The plaintiff retained counsel on November 4, 1998. Counsel filed an application for judicial review in this Court and a stay of the deportation order was sought. The stay application was originally to be argued on November 6, 1998, but due to travel arrangement difficulties, the plaintiff's removal was postponed to November 14, 1998. Plaintiff's counsel was advised on November 6, 1998, and at the suggestion of defendants' counsel, agreed to argue the stay on November 9, 1998.
[5] The stay was heard by Mr. Justice Blais on November 9, 1998. Substantially the same arguments relating to the plaintiff's removal were made before Justice Blais as are before the Court on this interim injunction application. Justice Blais' reasons and order were issued on November 12, 1998. He was prepared to assume, without deciding, that the plaintiff had raised a serious issue. However, he was not convinced that the plaintiff would suffer irreparable harm by being removed to Afghanistan. He acknowledged that Afghanistan continues to experience civil war and political instability. He addressed the plaintiff's arguments that there was a risk to his life and that he could be tortured if he was returned. He was not satisfied the Taliban or Afghan Government were seeking to harm the plaintiff. He also reviewed the arguments relating to sections 7 and 12 of the Charter and the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 26 June 1987, 1465 U.N.T.S. 85. After finding the plaintiff would not suffer irreparable harm if he was removed to Afghanistan, he also concluded that the balance of convenience favoured the Minister. He therefore denied the stay application.
[6] Immediately upon being notified of Justice Blais' decision and order, the plaintiff brought proceedings in the Ontario Court General Division seeking an interim injunction to stay the execution of the deportation order that was to be effected on November 14, 1998. The defendants moved to stay the proceedings in the General Division. The matter came before Mr. Justice Wilkins on November 13, 1998. Justice Wilkins concluded that the General Division should not hear the plaintiff's stay application and granted the defendants' motion to stop the proceedings in that Court. He expressed the view that "it is unseemly and inappropriate for this court to engage in a process that is designed to develop forum shopping at its worst with the intent of obtaining conflicting results between courts of concurrent jurisdiction."
[7] Travel arrangements could not be made for the plaintiff on November 14, 1998, and plaintiff's counsel was advised. On November 23, 1998, plaintiff's counsel was advised that the plaintiff was to be deported on November 27, 1998. Thereupon this action was instituted, together with the request for the interim injunction which was heard today.
[8] The defendants' position is that the Court should not hear the interim injunction application as the question of irreparable harm has already been decided by Mr. Justice Blais and that the plaintiff's motion is "inappropriate if not an abuse of the process".
[9] Although the arguments raised in this action are essentially the same as those in the judicial review brought by the plaintiff, plaintiff's counsel says that there is doubt as to the proper procedure to be followed when challenging an immigration officer's decision on Charter grounds. He says that upon reflection, he thought it more appropriate to bring this action rather than proceed by way of judicial review, as had originally been undertaken.
[10] Although plaintiff's counsel tries to justify bringing this action on the basis that a Charter challenge to an immigration officer's decision should be brought by way of action rather than judicial review, what is really going on is an attempt to have another judge of this Court reverse the stay determination by Blais J. Indeed, that is what the plaintiff attempted in commencing a proceeding in the Ontario Court General Division.
[11] Put in its most favourable light to the plaintiff, the plaintiff is seeking a reconsideration of the decision of Blais J. not to grant the plaintiff a stay of his deportation order. A proper motion for reconsideration should be brought before the judge who made the original decision. Be that as it may, the scope on a reconsideration is narrow.
[12] The general rule is that judicial decisions are final. Reconsideration is a narrow exception to the rule of finality. Matters arising subsequent to the making of a decision or discovered subsequent to the making of a decision may provide grounds for reconsideration. A judgment obtained through fraud may also be reconsidered. See Federal Court Rules 1998, subsection 399(2). However, the party seeking reconsideration must exercise due diligence to obtain all relevant information prior to the original decision being rendered. Further, the new information must indeed be new and not the same information that was previously available put in another form or brought in through another witness.
[13] With respect to irreparable harm, the plaintiff has produced two new pieces of evidence which were not before Justice Blais. Both pertain to conditions in Afghanistan and the plaintiff's circumstances in relation thereto. Plaintiff's counsel says this evidence could not have reasonably been obtained for purposes of the stay proceedings before Justice Blais. The first is an affidavit of an individual from Afghanistan who now works as a community counsellor in Canada. The second is a letter from Amnesty International. The affidavit from the community counsellor was obtained for purposes of the proceedings in the General Division. It was sworn on November 12, 1998, the same day as Mr. Justice Blais' decision was rendered, and the day before proceedings in the General Division. The Amnesty International letter is dated November 19, 1998.
[14] I have read the two new documents. They do not disclose evidence that was not before Mr. Justice Blais, and even if they did, I am not satisfied they could not have been obtained for those proceedings.
[15] Before Justice Blais, there was a report from Amnesty International dated August 17, 1998, which refers to difficulties that Tajiks were experiencing at the hands of the Taliban in parts of Afghanistan. A more up-to-date five page report dated November 1998, entitled "Afghanistan: The Massacre in Mazar E. Sharif" was also in the evidence before Blais J. The two new pieces of evidence reiterate what was contained in the August 17, and November documents. Plaintiff's counsel says the affidavit and the Amnesty International letter refer specifically to the plaintiff and this is new. However, the plaintiff filed his own affidavit in the proceedings before Mr. Justice Blais explaining why he believed he was in fear for his safety. The same points specific to the plaintiff made in the subsequent documents were before Justice Blais by reason of the plaintiff's own affidavit.
[16] Plaintiff's counsel says the new evidence could not have been obtained earlier. I do not agree. If plaintiff's counsel felt the original material filed in the stay application in the judicial review proceedings was insufficient, there was time to obtain the new evidence. On November 6, 1998, plaintiff's counsel was advised the deportation had been postponed to November 14, 1998. It does not appear that any effort was made to defer the hearing of the stay application to permit counsel to obtain further evidence. Counsel agreed to proceed on November 9, 1998 without it.
[17] For these reasons, I do not think the "new" information is new. In addition, the affidavit and Amnesty International letters could have been obtained for purposes of the stay application in the judicial review proceedings.
[18] Plaintiff's counsel has made it clear that he feels strongly that Canada must not be complicit in torture and that no deportation should take place in this case, even though the plaintiff is a convicted heroin importer. I have no doubt in the sincerity of plaintiff's counsel. I also acknowledge that there is evidence that Tajiks are experiencing difficulty in Afghanistan. However, Mr. Justice Blais has dealt with the issue in respect of the plaintiff, and was not satisfied that the plaintiff would suffer irreparable harm if he was removed to Afghanistan. He dismissed the stay application. He had the authority to decide the question and he did so. The proper administration of justice requires that his decision be accepted by the parties and that it not be relitigated.
[19] Mr. Justice Wilkins found it unseemly and inappropriate for the General Division "to engage in a process that is designed to develop forum shopping at its worst with the intent of obtaining conflicting results between courts of concurrent jurisdiction". I find it unseemly and inappropriate for a party to engage in a process of judge shopping with the intent of obtaining conflicting results between judges of this Court on the same facts of the same case.
[20] The Court must maintain opened and ready access, especially in serious cases such as applications to stay deportation orders. However, that important purpose must not be debased by repetitious applications involving forum shopping and judge shopping. This application is an abuse of the process. It should not have been brought. The application is dismissed.
[21] Counsel for the defendants asks for costs on a solicitor and client basis on the grounds that the Court has found that the motion should not have been brought and that it is the third motion for a stay in approximately three weeks. Counsel for the plaintiff submits that the case was taken on a pro bono basis and that the Court should take this into account. Costs are awarded to the defendants on a solicitor and client basis. While it would appear to be unlikely that the defendants will recover costs, the Court should be on record as expressing itself strongly with respect to the inappropriateness of the proceedings that were brought today.
"Marshall Rothstein"
Judge
TORONTO, ONTARIO
December 2, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: ZOLMAY ZOLFIQAR |
and -
| THE MINISTER OF CITIZENSHIP AND |
IMMIGRATION
DATE OF HEARING: FRIDAY, NOVEMBER 27, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: ROTHSTEIN, J.
DATED: WEDNESDAY, DECEMBER 2, 1998
APPEARANCES: Mr. Lorne Waldman
For the Plaintiff
Ms. Neeta Logsetty
For the Defendants
SOLICITORS OF RECORD: Jackman, Waldman & Associates
Barristers & Solicitors
281 Eglinton Avenue East
Toronto, Ontario
M4P 1L3
For the Plaintiff
Morris Rosenberg
Deputy Attorney General
of Canada
For the Defendants
FEDERAL COURT OF CANADA
Date: 19981202
Docket: IMM-6021-98
Between:
Plaintiff
- and -
HER MAJESTY THE QUEEN
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Defendants
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