Date: 20020611
Docket: IMM-1851-02
Neutral citation: 2002 FCT 662
Toronto, Ontario, Tuesday, the 11th day of June, 2002
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
MICHAEL SMITH
Applicant
- and -
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Introduction
[1] Mr. Michael Smith (the "Applicant") brings a motion pursuant to the Federal Court Rules, 1998 ("the Rules") for an order setting out a timetable to expedite the within application. The Minister of Citizenship and Immigration (the "Respondent") opposes the motion.
Facts
[2] The Applicant commenced an application for leave and judicial review on April 25th, 2002 relative to a decision of the Immigration and Refugee Board, Appeal Division ("Appeal Division") made on April 10th, 2002. In its decision, the Appeal Division dismissed the Applicant's appeal against a deportation order which had been issued against him on October 29, 2001.
[3] The Applicant is in custody pursuant to the provisions of the Immigration Act, R.S.C. 1985, c. I-2 as amended (the "Act"). He had been arrested on October 18th, 2001 pursuant to a warrant of arrest that had been issued on October 11th, 2001 under the Act. The warrant had been issued relative to the failure of the Applicant to appear before an inquiry on April 2nd, 2001, which inquiry had been invoked on December 13th, 2000, pursuant to s. 27(3) of the Act.
[4] The Applicant has remained in detention since October 18th, 2001 and in accordance with the Act, his detention has been reviewed on several occasions. The detention reviews were conducted pursuant to s. 105. In general, the adjudicators had decided to continue his detention on the basis of a concern that he would be unlikely to appear for removal if he were released. This concern was voiced on several occasions by adjudicators, together with concerns as to the sufficiency of cash bail which had been offered by his mother and latterly, his aunt.
[5] The reasons of the adjudicator delivered on May 2nd, 2002, following the detention review on that date, provided in part as follows:
This matter will be reviewed again within the next 30 days if, in fact, removal is not executed within that period. If this is the case, I would ask that the Department be in a position to update precisely what is happening concerning the travel document. If it is discovered that a document might not be available for some time for some reason or another, then perhaps consideration can be given to bonds which had been proposed previously which might suffice for the making of a release order. Once the subject is seen, this matter can be canvassed further if removal is not executed soon.
- Respondent's Motion Record, pp. 63 and 64.
Submissions
[6] Although the present application for leave and judicial review does not challenge the legality of the Applicant's continued detention, he relies upon his continued detention as the basis upon which an order should be made expediting the disposition of his application for leave and judicial review. He refers to and relies upon Rules 3 and 385 of the Rules, as well as s. 18.4(1) of Federal Court Act, R.S.C. 1985, c. F-7, as amended, as well as the Canadian Charter of Rights and Freedoms, s. 7 and the Federal Court Immigration Rules, 1993, SOR/93-22, as amended, SOR/98-235, 221.
[7] The Applicant argues that the combined effect of these statutory provisions and rules is that in a matter of urgency, which arises when a person is in custody, all efforts should be made
to expedite the hearing of an outstanding application for judicial review in order to provide the most expeditious and least expensive determination of the application on its merits, having regards to limits on personal liberty, judicial resources and the costs to the public of maintaining a lengthy period of incarceration prior to determination of the application on its merits.
[8] As noted above, the Respondent opposes this Notice of Motion. The Respondent argues that essentially, the Applicant is now making a collateral attack on the orders of the independent adjudicators who have ordered his continued detention. The Respondent says that these are separate decisions which have not been challenged in the within proceeding.
[9] Furthermore, the Respondent submits that an application for judicial review is, by its nature, a summary and expeditious proceeding. No justification has been shown by the Applicant why the conduct of his underlying application for leave and judicial review should be governed by anything other than the ordinary time limits.
Analysis
[10] The Applicant's application for leave and judicial review in this matter is governed by s. 82.1 of the Act. S. 82.1(3)(4)(6)(7)(8) are relevant to the within motion. These sections provide as follows:
| (3) An application under this section for leave to commence an application for judicial review shall be filed with the Federal Court -- Trial Division and served within fifteen days after the day on which the applicant is notified of the decision or order or becomes aware of the other matter.
(4) Unless a judge of the Federal Court -- Trial Division directs otherwise, an application under this section for leave to commence an application for judicial review shall be disposed of without personal appearance.
...
(6) Subject to subsection (7), where leave to commence an application for judicial review is granted, the application for judicial review shall be deemed to have been commenced and the judge granting leave shall fix the day and place for the hearing of the application for judicial review.
(7) In fixing a day pursuant to subsection (6), the judge shall set the matter down for a day that is no sooner than thirty days, and no later than ninety days, after the day on which leave to commence the application for judicial review was granted, unless the parties agree that the matter may be set down on an earlier day.
(8) Any application for leave to commence an application for judicial review, and any application for judicial review, under this section shall be determined without delay and in a summary way.
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(3) La demande d'autorisation doit être déposée devant la Section de première instance de la Cour fédérale et signifiée à l'autre partie dans les quinze jours suivant soit la date où le demandeur est avisé de la décision, de l'ordonnance ou de la mesure en cause, soit celle où il a eu connaissance de l'affaire en question.
(4) Sauf ordre contraire d'un juge de la Section de première instance de la Cour fédérale, il est statué sur la demande d'autorisation sans comparution en personne.
...
(6) Sous réserve du paragraphe (7), si la demande d'autorisation est accueillie, la demande de contrôle judiciaire est réputée avoir été formée et le juge de la Cour fédérale qui a accueilli la demande d'autorisation fixe la date et le lieu d'audition de la demande de contrôle judiciaire.
(7) La date fixée conformément au paragraphe (6) ne peut être postérieure de moins de trente jours, sauf convention contraire des parties, ni de plus de quatre-vingt-dix jours à la date à laquelle la demande d'autorisation a été accueillie.
(8) Le juge de la Cour fédérale statue à bref délai et selon une procédure sommaire sur la demande d'autorisation et, le cas échéant
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[11] The Federal Court Immigration Rules, supra, Rules 4 and 21 are also relevant. They provide as follows:
| (Rule 4)
(1) Subject to subrule 3, except to the extent that they are inconsistent with the Act or these Rules, Parts 1, 2, 3, 6, 7, 10 and 11 and Rules 383 to 385 of the Federal Court Rules, 1998 apply to applications and appeals.
(2) Except to the extent that they are inconsistent with the Act, Parts 1, 2, 3, 5, 7, 9, 10 and 11 of the Federal Court Rules, 1998 apply to applications for judicial review of a decision of a visa officer.
(3) Rule 133 of the Federal Court Rules, 1998 does not apply to service of an application under Rule 7. SOR/98-235, s. 2(T).
...
(Rule 21)
[Repealed, SOR/98-235, s. 5]
(2) No time limit prescribed by these Rules may be varied except by order of a judge or prothonotary. SOR/98-235, s. 5.
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(Règle 4)
Sous réserve du paragraphe (3), les demandes et les appels sont régis par les parties 1, 2, 3, 6, 7, 10 et 11 et les règles 383 à 385 des Règles de la Cour fédérale (1998), sauf dans les cas où ces dispositions sont incompatibles avec la Loi ou les présentes règles.
(2) Les demandes de contrôle judiciaire d'une décision de l'agent des visas sont régies par les parties 1, 2, 3, 5, 7, 9, 10 et 11 des Règles de la Cour fédérale (1998), sauf dans les cas où ces dispositions sont incompatibles avec la Loi.
(3) La règle 133 des Règles de la Cour fédérale (1998) ne s'applique pas à la signification d'une demande aux termes de la règle 7 des présentes règles. DORS/98235, art. 2(T).
...
(Règle 21)
[Abrogéé, DORS/98-235, art. 5]
(2) Les délais prévus aux présentes règles ne peuvent être modifiés que par ordonnance d'un juge ou d'un protonotaire. DORS/98-235, art. 5.
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[12] Rule 4 of the Federal Court Immigration Rules, supra, incorporates by reference certain portions of the Rules including those rules dealing with specially managed proceedings. The guiding principle in the application of the Rules is the just, most expeditious and least expensive determination of a proceeding on the merits, as stated in Rule 3. This rule is entirely consistent with s. 82.1(8) of the Act and the Federal Court Immigration Rules, supra, governing the time frames within which an Applicant and Respondent are to file their respective application records.
[13] An order removing a proceeding from the usual time-frames will involve the exercise of discretion whether that order is made pursuant to the Rules or the Federal Court Immigration Rules, supra, Rule 21. In my opinion, the exercise of discretion in that manner must be related to a substantial ground arising from the proceeding at issue.
[14] In the present case, the proceeding at issue is an application for judicial review relative to a negative decision of the Appeal Division. The underlying application for judicial review does not challenge the detention order, reviews of the detention order or any removal order. Indeed, counsel for the Applicant specifically said on the record that the legality of the detention order is not being challenged.
[15] In the present case, the Applicant has filed his application record. The Respondent's application record is due by June 17th, 2001 and counsel for the Respondent advised, on the record, that the record would be filed in time. The Federal Court Immigration Rules, supra, provide the Applicant with an opportunity to file a reply within ten days of receipt of the Respondent's application record and if he chooses to do so, the underlying application for leave and judicial review will be perfected on or before June 27, 2002. It will then be presented to a judge for determination on the question of leave.
[16] I see no basis for granting this Applicant's present motion that a timetable be set expediting this application. The motion will be dismissed but without prejudice to the Applicant
to bring a further motion for an expedited hearing if he is successful in obtaining leave to pursue his application for judicial review.
ORDER
The motion is dismissed, without prejudice to the right of the Applicant to seek a further order for an expedited hearing if leave is granted in relation to the underlying application for judicial review.
"E. Heneghan"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-1851-02
STYLE OF CAUSE: MICHAEL SMITH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MONDAY, JUNE 10, 2002
REASONS FOR ORDER
AND ORDER BY: HENEGHAN J.
DATED: TUESDAY, JUNE 11, 2002
APPEARANCES BY: Mr. Avi J. Sirlin
For the Applicant
Ms. Kareena Wilding
For the Respondent
SOLICITORS OF RECORD: Avi J. Sirlin
Barrister and Solicitor
425 University Avenue
Suite 500
Toronto, Ontario
M5G 1T6
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020611
Docket: IMM-1851-02
BETWEEN:
MICHAEL SMITH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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