Date: 20020614
Docket: IMM-3861-00
Neutral citation: 2002 FCT 674
Ottawa, Ontario, this 14th day of June 2002
Present: THE HONOURABLE MADAM JUSTICE LAYDEN-STEVENSON
BETWEEN:
BELA ARNDORFER, NIKOLETTA KRISTINA HOLBIS,
BARBARA ZSANETT HOLBIS,
Applicants,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
[1] At the outset of the hearing of the application for judicial review, the applicants' counsel raised a jurisdictional issue regarding the appropriate forum for consideration of the effect of the applicants' "Notice of Withdrawal of a Convention Refugee Claim" and the respondent's "Notification Confirming Withdrawal of a Convention Refugee Claim". This issue arises because the applicants have filed an application for reinstatement of their refugee claim pursuant to subsection 34(1) of the Convention Refugee Determination Division Rules, and that matter is currently before the Refugee Division. The application for judicial review was filed on July 21, 2000 and the motion to the CRDD to reinstate the claims was made on August 2, 2000. This has led both this Court and the Refugee Division to be in the peculiar position of having to adjudicate issues arising from the same subject-matter at the same time. As a result, the Refugee Division has adjourned the applicants' Rule 34 application pending the resolution of this application for judicial review.
[2] For the reasons outlined in the recitals of my Order dated April 9, 2002, I ordered written submissions and adjourned the hearing sine die pending my decision on the preliminary issue.
[3] Having now had the benefit of the written submissions of counsel, I agree with the applicants' position that the issue of the validity of the withdrawal of the applicants' Convention refugee claims would be more appropriately dealt with by the Refugee Division pursuant to the applicants' request for reinstatement of their claims under Rule 34(1). This, however, does not end the matter.
[4] It is my view that, while the Refugee Division is the best forum for resolution of these issues, this Court is also properly seized of the matter under the application for judicial review and cannot now decline jurisdiction. The only way for the matter to land squarely and exclusively before the Refugee Division is for the applicants to withdraw or discontinue their application in this Court.
[5] The applicants are reticent to do so in the absence of some sort of guarantee that they will not be removed from Canada pending resolution of this matter. Counsel for the Minister is of the view that the conditional removal order will be effective once the application for judicial review is withdrawn, and could be executed as of that time.
[6] While I appreciate the dilemma in which the applicants' counsel finds himself, resolution of the "jurisdictional issue" is independent of the issue regarding the conditional removal order. The latter has no bearing on the question of the proper forum for determination of the validity of the withdrawals, and is not properly before me as a preliminary matter in this application. It is therefore neither necessary nor appropriate for me to address the applicants' second request regarding the conditional removal order.
[7] Therefore, despite my agreement with the applicants' counsel as to the more appropriate forum for determination of the validity of the withdrawals, absent a discontinuance or withdrawal of the application for judicial review, I conclude that it is not open to me to decline jurisdiction. The application for judicial review will proceed and the Court will determine the issues contained therein.
ORDER
IT IS THEREFORE ORDERED THAT the hearing of the application for judicial review will proceed and will be entered on the hearing list on a date to be assigned by the Associate Chief Justice.
___________________________________
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3861-00
STYLE OF CAUSE: Bela Arndorfer and others v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Tuesday, April 9, 2002
REASONS FOR ORDER AND ORDER OF
THE HONOURABLE MADAM JUSTICE LAYDEN-STEVENSON
APPEARANCES:
Mr. Rocco Galati FOR APPLICANT
Ms. Catherine Vasilaros FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Rocco Galati FOR APPLICANT
Toronto, Ontario
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada