Canada (Minister of Citizenship and Immigration) v. Jimenez, docket IMM-797-99

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docket IMM-797-99

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Date: 19990318

Docket: IMM-797-99

Ottawa, Ontario, the 18th day of March 1999

PRESENT: THE HONOURABLE MADAME JUSTICE SHARLOW

BETWEEN:

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Applicant

- and

JESUS LEONARDO JIMENEZ

Respondent.

ORDER

UPON REVIEWING the application for directions under Rule 321, this Court orders as follows:

1. Notice of the reference will be given to the Respondent. The Convention Refugee Determination Division will take no part in the proceedings.

2. The material that will constitute the case to be determined on the reference will consist of:

(a) one or more volumes consisting of certified copies of the documents that are in the file or that were consulted by the Minister or Ministry officials with respect to the letter of January 7, 1999;

(b) one or more volumes consisting of certified copies of any other documents in the possession or control of the Minister or counsel for the Minister, the existence of which would have to be disclosed under Rule 223 if this proceeding were an action;

(c) one or more volumes consisting of the record that was before Muldoon J. in Jimenez v. Minister of Citizenship and Immigration, IMM-356-97;

(d) one or more volumes consisting of any affidavits that are relevant to the issue,

(e) one or more volumes consisting of the transcripts of any cross-examinations on affidavits.

3. Each volume will be bound in a manner that facilitates convenient reference. Each volume will be appropriate labelled.

4. Each volume containing affidavits or transcripts of cross-examinations will indicate whether it is filed on behalf of the applicant or the respondent.

5. Each volume will contain an index. The pages in each volume will be consecutively numbered.

6. On or before April 30, 1999, the applicant will serve and file the volumes referred to in paragraph (a), (b), (c) and (d) (containing any affidavits submitted on behalf of the Minister), and the respondent will serve and file the volumes referred to in paragraph (d) containing any affidavits submitted on behalf of the respondent.

7. Any cross-examination on affidavits will be completed by May 31, 1999. The volumes containing transcripts of the cross-examinations will be served and filed by June 21, 1999.

8. Either party may apply for further directions with respect to the contents of the case.

9. The applicant's memorandum of law, if any, will be served and filed on or before July 21, 1998.

10. The respondent's memorandum of law, if any, will be served and filed on or before August 16, 1999.

11. The applicant's response to the respondent's memorandum, if any, will be served and filed on or before August 23, 1999.

12. The reference will be heard at the Federal Court of Canada in Toronto, Ontario, on September 21, 1999, at 9:30 a.m. The procedure will be the same as for an application for judicial review.

13. Any of these directions may be reconsidered and varied by the Court on its own motion or on the motion of either party.

Karen R. Sharlow

Judge

Date: 19990318

Docket: IMM-797-99

BETWEEN:

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Applicant

- and

JESUS LEONARDO JIMENEZ

Respondent.

REASONS FOR ORDER

SHARLOW J.:

1 By notice of application filed February 18, 1999, the applicant has referred the following question to the Court pursuant to section 18.3 of the Federal Court Act:

Would the processing of the Respondent's application for landing pursuant to subsections 5(2) and 19(1) of the Immigration Act, by the Applicant, be in violation of the order of Muldoon J. dated March 18, 1998?

2 The applicant now seeks directions under Rule 322. I find it necessary first to consider the order of Muldoon J. dated March 18, 1998 and the facts on which it is based, as set out in his reasons.

3 The Respondent, Mr. Jimenez, is a citizen of Ecuador. He entered Canada in 1989 with his wife and daughter. By the time of the decision of Muldoon J. they had three other children, all born in Canada.

4 Mr. Jimenez and his wife and daughter claimed refugee status. After a hearing in September and December of 1992, the Convention Refugee Determination Division (CRDD) found them not to be Convention refugees because there was not a well founded fear of persecution.

5 The CRDD also found, in the alternative, that there were serious reasons for considering that Mr. Jimenez had committed a serious non-political crime outside the country of refuge. By virtue of section F of Article 1 of the Convention, that would disqualify him as a Convention refugee even if there had been a well founded fear of persecution.

6 It appears that there was no judicial review of the CRDD decision. It is not clear whether an application for judicial review was made.

7 On February 5, 1996, Mr. Jimenez and his wife and eldest daughter applied for permanent residence under the "DROC Regulations." These regulations were enacted to resolve the cases of certain failed refugee claimants who had not been removed from Canada for several years.

8 Because of a specific exclusion in the DROC Regulations, a person who was excluded as a Convention refugee by virtue of section F of Article 1 of the Convention was not entitled to the benefit of the DROC Regulations.

9 By letter from Citizenship and Immigration Canada dated April 11, 1996, Mr. Jimenez was advised that he appeared to meet the eligibility requirements under those regulations, and that his application for permanent residence would be reviewed at a case processing centre.

10 A letter from Citizenship and Immigration Canada dated January 2, 1997 purported to reverse that decision. Mr. Jimenez was told that the case would be referred to a hearings or removals office for further consideration.

11 Muldoon J. held that the decision expressed in the letter of April 11, 1996 could not be reversed by the Minister, even if it was wrong in law, and therefore the lettter dated January 2, 1997 was void and of no effect. His order, dated March 18, 1998, reads as follows:

UPON originating motion for certiorari, mandamus and other relief in regard to the responent's [Minister's] January 2, 1997 reversal of the respondent's April 11, 1996 finding of eligibility under the Deferred Removal Orders Class (DROC) having come on for hearing in Toronto in the presence of counsel for each side, now

THIS COURT ORDERS that the applicant's [Mr. Jimenez] originating motion is allowed (idem #2589-0835) and the purported decision by C. Tout, acting without jurisdiction, and functus, expressed in the respondent's letter dated 02 January 1997 is hereby quashed and set aside;

THIS COURT FURTHER ORDERS that this matter be referred to another immigration officer (different from C. Tout) to process and carry out the applicant's, his wife's and his child's landing in Canada as it would have been processed and carried out, under DROC if not interrupted by the respondent's unlawful, purported decision of January 2, 1997, or alternatively as if the landing were, or had been, granted as a result of a successful humanitarian and compassionate review; and all else failing, the respondent personally shall effect the carrying out of the above provisions; and

THIS COURT DECLARES that the now quashed decision of January 2, 1997, could never have applied to Eliza del Rosario Jimenez and Lizzeth Jinenez (even if it ever had validity, which it did not), said purported decision being void ab initio as to all three: Jesus Leonardo, Eliza del Rosario, and Lizzeth.

12 On January 7, 1999, the Minister wrote to Mr. Jimenez to advise that he would be required to meet the landing requirements in section 11.401 of the Immigration Regulations, and that a separate decision was to be made with respect to those requirements. The letter indicated that consideration was being given to a negative decision on the basis of information that he had committed an act outside Canada that constituted an offence in that country and that, if committed in Canada, would be an offence punishable by a maximum term of imprisonment of ten years or more.

13 Apparently, the specific act in question was the same one that led the Convention Refugee Determination Division to conclude that Mr. Jimenez would not qualify as a Convention refugee because of section F of Article 1 of the Convention. The letter invites submissions by Mr. Jimenez within 60 days.

14 Counsel for Mr. Jimenez then wrote a letter to counsel for the Minister stating his position that an additional review with respect to landing requirements would be a breach of the order of Muldoon J. The reference under section 18.3 of the Federal Court Act is intended to determine that question. Directions are sought on all of the items in Rule 322.

15 The following directions are given:

Upon reviewing the application for directions under Rule 321, this Court orders as follows: