Canada (Minister of Citizenship and Immigration) v. Tiky, docket IMM-5693-00

     Date: 20010105

     Docket: IMM-5693-00

Ottawa, Ontario, this 5^th day of January 2001

PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER

BETWEEN :

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Applicant

     - and -

     ANBESSIE DEBELE TIKY

     Respondent

     REASONS FOR ORDER AND ORDER

PELLETIER J.

[1]      I have before me the Notice of Motion pursuant to Rule 369 of the Federal Court Rules, 1998 (the "Rules") of the applicant, the Minister of Citizenship and Immigration, requesting an expedited oral hearing of the application for leave to commence an application for judicial review of the decision of the Immigration and Refugee Board, Adjudication Division, dated October 11, 2000 dismissing the Minister's application to vacate the finding that the respondent Anbessie Debele Tiky is a convention refugee.

[2]      The Notice of Motion seeks an oral hearing of the application for leave on the ground that an expeditious disposition of the leave application is required given the pending inquiry, pursuant to subsection 19(1)(j) of the Immigration Act as to whether the respondent is inadmissible to Canada for having participated in crimes against humanity. The inquiry is scheduled to reconvene on January 26, 2001. I presume that the rationale for requesting an oral hearing is to permit the applicant to argue the merits of the judicial review on the leave application so as to suggest, at the conclusion of the hearing, that if leave is granted, the judicial review ought to be allowed without further argument.

[3]      Mr. Crane, who is not retained by the respondent with respect to proceedings in the Federal Court but who puts the respondent's position on the record as a courtesy to the Court, notes that the respondent has not filed his material on the leave application and has until January 22 to do so. If the leave application is to be heard orally, it could not be heard until after that date, in the absence of an order compelling the respondent to file his material sooner than required by the Rules. There is no request for such an order before the Court.

[4]      The problem which the applicant seeks to resolve is the following. Counsel for the respondent takes the position, and the adjudicator conducting the inquiry has indicated a willingness to consider the argument, that the dismissal of the Minister's application creates an issue estoppel with regards to the subject matter of the inquiry. The applicant clearly wishes to avoid the whole issue by having the decision in question set aside before the inquiry resumes.

[5]      The applicant's motion is driven by the date for the resumption of the inquiry. Fairness, however, requires that the respondent be given the time necessary to respond to the applicant's record. The Court will render a decision on the leave application as soon as the record is complete. At that point, the relative timing of the judicial review application, if allowed, and the resumption of the inquiry can be addressed by the parties as they see fit.

[6]      In the circumstances, I am not prepared to grant the order sought. I will direct that the application for leave be placed before me as soon as the applicant's reply has been filed or the time for doing so has expired, or, if the applicant has waived her right to file a reply, as soon as the respondent's material has been filed (or the time for doing so has expired), whichever occurs first. Thereafter, the parties may consider what course of action they should adopt in light of the Court's decision on the application for leave.

ORDER

     For the reasons set out above, it is hereby ordered that the application for an oral hearing of the application for leave to commence an application for judicial review of the decision of the Convention Refugee Determination Division dated October 11, 2000, dismissing the Minister's application to vacate the finding that the respondent, Anbessie Debele Tiky, is a refugee is dismissed. It is further ordered that the application for leave shall be brought to me for determination upon the earliest of the following:

"J.D. Denis Pelletier"

Judge