Date:
20130522
Docket:
IMM-3189-13
Citation:
2013 FC 530
BETWEEN:
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LALI DORESI
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR INTERLOCUTORY INJUNCTION
[1]
In
2006, the Refugee Protection Division, of the Immigration and Refugee Board of
Canada, gave Mr. Doresi our protection as a result of a blood feud in Albania. It was determined on the balance of probabilities that were Mr. Doresi to be
removed to Albania, there existed substantial grounds to believe that he would
be personally subjected to a danger of torture or a risk to his life or a risk
of cruel and unusual treatment of punishment, the whole in accordance with
section 97 of the Immigration and Refugee Protection Act [IRPA].
[2]
The
Minister has now applied to the Refugee Protection Division (RPD) to have his refugee
protection vacated in accordance with section 109 of IRPA. The basis is that
Mr. Doresi made a material misrepresentation. He had represented that he had no
criminal record while the Minister has now been provided with evidence that he
had been convicted for drug trafficking, i.e. attempting to smuggle heroin
out of Albania into Greece. Section 109(1) of IRPA reads:
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109. (1)
The Refugee Protection Division
may,
on application by the Minister, vacate a decision to allow a claim for refugee protection,
if it finds that the
decision was obtained as a
result of directly or indirectly misrepresenting or withholding material facts
relating to a relevant matter.
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109.
(1) La
Section de la protection des réfugiés peut, sur demande du
ministre, annuler la décision ayant accueilli la demande d’asile résultant,
directement ou indirectement, de présentations erronées sur un fait
important quant à un objet pertinent, ou de réticence sur ce fait.
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[3]
He
was convicted in absentia but was said to have been represented by a
lawyer who entered a guilty plea.
[4]
Mr.
Doresi denies everything. He is said on 12 May 2005 to have personally appeared
before a notary in Tirana to give a lawyer a power of attorney. At that time he
was already in Canada and had already claimed refugee protection.
[5]
He
has asked the RPD to postpone the hearing on the Minister’s application to
vacate the favourable refugee decision to give him a reasonable opportunity to
clear his name in Albania. The RPD has refused. Mr. Doresi then moved for an
interlocutory injunction before this Court, which was granted yesterday. These
are the reasons.
MR. DORESI’S
STORY
[6]
According
to Mr. Doresi, he was completely unaware that he had been convicted in
absentia for drug trafficking in Albania until he was served with the
Minister’s Application to Vacate Refugee Protection. He made inquiries
and now understands that this is what happened.
[7]
In
September 2003, he lent his car to a friend who told him he had been in an
accident and that the car was a total loss. He compensated Mr. Doresi.
[8]
However,
it seems that the friend had been attempting to transport drugs from Albania into Greece. When stopped at the border, he ran away and was not caught. However, based on
vehicle registration and Mr. Doresi’s passport which was in the car, he was
charged with trafficking. Thus, according to Mr. Doresi, this is a case of
mistaken identity coupled with police fraud.
[9]
The
police came to his parents’ house looking for him but did not say what they
wanted. Although his parents told the police where he lived, he was never
contacted. He assumed they were investigating the car accident.
[10]
The
next year, he went to a police station to obtain a new passport. The police did
not inform him that he was wanted for any crime.
[11]
According
to the documents in the Application to Vacate, he was sentenced on 5 June 2005
to imprisonment for six years.
[12]
However,
and this appears to be corroborated by evidence in Canada, he left Albania on 24 April 2005 and arrived in Canada the same day. He made a claim for refugee
status.
[13]
Following
receipt of the Application to Vacate, he retained counsel in Canada and in Albania. His Albanian lawyer was able to locate a power of attorney which indicates
that Mr. Doresi had personally appeared before a notary in May 2005 to
authorize a lawyer to plead guilty on his behalf. This would appear to be
impossible as Mr. Doresi was already in Canada.
[14]
Through
counsel, he requested an adjournment of the Application to Vacate to give him
an opportunity to attempt to have the criminal conviction in Albania set aside.
[15]
That
request was denied as follows:
However, we are denying the application in terms of
a postponement for the documents to be obtained from Albania. The Board has a
responsibility to proceed as expeditiously as possible in the cases before it.
Guideline 6(7.7) indicates that if a party requests a change of date or time
for purposes of obtaining documentation, the Refugee Protection Division
proceeds and determines at [the] end of hearing if necessary to grant a delay
to obtain the documents.
[16]
Since
then, Mr. Doresi has also obtained an opinion from a forensic expert which
indicates that the signature on the power of attorney issued in Albania is a forgery.
[17]
Counsel
for Mr. Doresi and for the Minister both agree that it is highly unusual for
the Court to interfere with the scheduling of hearings before federal
tribunals. Absent extraordinary circumstances, parties must exhaust their
rights and remedies under the administrative process before seeking help from
the courts. As the Court of Appeal stated in Szczecka v Canada (Minister of Employment and Immigration) (1993), 116 DLR (4th) 333, 170 NR 58,
[1993] FCJ No 934 (QL) at paragraph 4:
This is why unless there are special circumstances there should
not be any appeal or immediate judicial review of an interlocutory judgement.
Similarly, there will not be any basis for judicial review, specially immediate
review, when at the end of the proceedings some other appropriate remedy
exists. These rules have been applied in several Court decisions specifically
in order to avoid breaking up cases and the resulting delays and expenses,
which interfere with the sound administration of justice and ultimately bring
it into disrepute. In the case of judicial review under s. 28 of the Federal
Court Act, which is the case now before the Court, the interpretation of that
section by the Court is even more strict. [See e.g. Mahabir v. Canada, [1992] 1 F.C. 133 (F.C.A.)]
[18]
Likewise,
as Mr. Justice Pinard held in Rogan v Canada (Minister of Citizenship and
Immigration), 2010 FC 532, [2010] FCJ No 660 (QL), at paragraph 6:
The rationale for such restrictive access to
judicial review is to avoid the unnecessary delays and expenses associated with
breaking up a case on each and every opportunity for appeal, which would
interfere with the sound administration of justice and ultimately bring it into
disrepute (Zündel, and Szczecka, supra). The Federal Court
of Appeal held in Anti-dumping Act (In re) and in re Danmor Shoe Co. Ltd.,
[1974] 1 F.C. 22, at page 34:
.
. . a right, vested in a party who is reluctant to have the tribunal finish its
job, to have the Court review separately each position taken, or ruling made,
by a tribunal in the course of a long hearing would, in effect, be a right
vested in such a party to frustrate the work of the tribunal. […]
DISCUSSION
[19]
The
audi alteram partem aspect of natural justice requires that Mr. Doresi
be given a fair opportunity to present his defence. It has been said that even
God did not remove Adam and Eve from the Garden of Eden without a proper
hearing (The King v. The Chancellor, & c., of
Cambridge, (1723) 1 Stra. 557; Cooper v. The Wandsworth
Board of Works (1863), 143 ER 414 at p. 420; and Matondo
v Canada (Minister of Citizenship and Immigration) (2005), 44 Imm LR
(3d) 225, 2005 FC 416, [2005] FCJ No 509 (QL)).
[20]
Mr.
Doresi’s case is that he has not been sitting on his hands since learning of
his conviction, and that if he succeeds in having it set aside the Minister’s
case falls.
[21]
On
the other hand, counsel for the Minister submits that it is highly speculative
to suggest that the RPD will not observe the rules of natural justice. Of
course, it may be that the RPD will dismiss the Minister’s application
(however, the Minister is not withdrawing it).
[22]
I
have determined that this is one of these rare cases where the RPD should be
enjoined, for a reasonable period of time, from proceeding.
[23]
Apart
from a few preliminary matters, the hearing before the RPD has not even
commenced. Furthermore, the RPD has misconstrued its own Guideline 6, section
7.7, which provides:
If a party requests a change of date or time of the
proceedings for the purpose of obtaining documentation, the RPD generally
proceeds and will determine at the end of the hearing whether or not it is
necessary to grant a delay to obtain and provide the documents.
[My emphasis.]
[24]
The
RPD was of the view it had a responsibility to proceed as expeditiously as
possible and only at the end of the hearing would it decide whether it would
grant a delay. The RPD fettered its discretion. Mr. Doresi has the right, as a
matter of fundamental justice, to be given a reasonable opportunity to obtain
documents which would clear his name.
[25]
The
test for a stay or an interlocutory injunction is well known. There must be a
serious issue, irreparable harm if the motion is not granted and the balance of
convenience must favour the moving party (Toth v Canada (Minister of
Employment and Immigration) (1988), 86 NR 302 (FCA), [1988] FCJ No 587 (QL)
and RJR – MacDonald Inc. v Canada (Attorney General), [1994] 1 S.C.R. 311,
[1994] SCJ No 17 (QL)).
[26]
In
this case, the serious issue and irreparable harm are intertwined. The RPD has
already found that if Mr. Doresi is returned to Albania it is more likely than
not that he will be tortured or murdered or face cruel and unusual treatment or
punishment. That is certainly irreparable harm. He should not have to fight a
rearguard action of applications for leave for judicial review and judicial
review should his refugee protection be vacated without him having been given a
fair opportunity to make his defence. It can never be inconvenient to follow
natural justice.
[27]
For
these reasons, I have granted an interlocutory injunction enjoining the RPD,
until further order, from proceeding with the hearing on the application to
vacate refugee protection scheduled to recommence on Monday, 27 May 2013. I
have also directed Mr. Doresi’s counsel to report to the Court by 16 July 2013
as to the status of the efforts in Albania to have the conviction set aside. I
remain seized of the matter.
“Sean Harrington”
Toronto, Ontario
May 22, 2013
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