Date: 20090909
Docket: IMM-1273-09
Citation: 2009 FC 887
Ottawa, Ontario, September 9,
2009
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
TEE
MENG LIEW
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
immigration matters related to Mr. Liew have been convoluted at best. This
judicial review is but another one of the twists and turns in his litigation
with the Minister.
I. BACKGROUND
[2]
The
judicial review at issue this time is related to a negative PRRA decision
rendered February 9, 2009. One of the issues raised was the nature of the
assurance given by the Government of Malaysia as to the likelihood that the
death penalty would not be imposed on Mr. Liew for murder in his home country
or if imposed, that it would not be carried out.
[3]
This
type of assurance has been required by Canada as a result
of the decisions in United States v. Burns, [2001] 1 S.C.R. 283 and Suresh
v. Canada (Minister of
Citizenship and Immigration), [2002] 1 S.C.R. 3, so that the Canadian
government is not connected with the deprivation of “life, liberty or
security”.
[4]
The
“assurance” first given by Malaysia and upon which the PRRA
Officer relied in his decision merely stated that since murder charges had been
pending for 17 years “the chances to charge Mr. Liew would be minimal”.
[5]
Subsequent
to the granting of leave for judicial review, the Respondent brought a motion
to adjourn the judicial review hearing and consenting to the judicial review.
The reason for the change in the Respondent’s position is that the Malaysian
government had sent a further Diplomatic Note advising Canada that it
cannot give the assurances requested related to the death penalty and cannot do
so because the laws of Malaysia do not allow such
assurances to be given.
[6]
Despite
the Respondent’s concession, the Applicant opposed the consent to judicial
review. The sole point of the Applicant’s opposition is that the motion
contained no terms as to the time in which to conduct a new PRRA, no promise
that the PRRA would be positive, and no reference to the Applicant’s
incarceration.
[7]
The
Applicant seeks a ruling that the Diplomatic Note is insufficient, an
unconditional release and costs exceeding $25,000.
[8]
In
view of the Applicant’s position, the judicial review continued as scheduled.
The hearing could have been avoided by the Applicant accepting the Respondent’s
concession and requesting a teleconference to settle the terms of the order
granting leave.
[9]
Given
the history of this case and the allegations that the Applicant’s counsel had
made against Respondent’s counsel and against members of this Court, it was
reasonable for the Department of Justice to have two lawyers present to avoid
any delay if lead counsel had to step aside to address allegations suggested in
the Applicant’s material.
II. ANALYSIS
[10]
In
addressing the grounds of opposition to the Respondent’s consent to judicial
review, the Court will not issue directions to the PRRA Officer conducting the
new PRRA. There have been too many developments in this case to justify carving
matters in stone prematurely. The Officer is expected to do his duty in light
of all of the circumstances.
[11]
However,
it is evident, and this may serve as guidance, that barring some other events,
the most recent Diplomatic Note does not meet the required assurances imposed
by the Supreme Court of Canada.
[12]
The
Court will make no order as to incarceration as this is a matter for another
body to determine.
[13]
The
Applicant has consented through counsel to waive his right to make submissions
on the new PRRA. As such, thirty (30) days to render a PRRA decision is
reasonable and will be so ordered.
[14]
Finally,
as to costs, there are no “special reasons” to make such an order against the
Respondent. When the new Diplomatic Note was available, counsel advised the
Applicant and the Court of its consent to the granting of judicial review. If
there were any “special reasons”, they would tend against the Applicant who
forced a matter on for hearing in Edmonton which could have been disposed
of in a far more expeditious manner.
III. CONCLUSION
[15]
Therefore,
the judicial review will be granted, the PRRA decision will be quashed and the
matter will be remitted to the Respondent to be determined by a new officer
within thirty (30) days of the date of the Court’s Order. There is no question
for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is granted, the PRRA decision is quashed and
the matter is remitted to the Respondent to be determined by a new officer
within thirty (30) days of the date of the Court’s Order.
“Michael
L. Phelan”
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