Date: 19980805
Docket: IMM-3465-98
BETWEEN:
MOHAMED BULLE BARRE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
RICHARD A.C.J.:
[1] The applicant seeks a further order staying his deportation.
[2] On July 10, 1998, the applicant filed an application for leave to commence judicial review of a decision made on July 6, 1998, to remove the applicant to Somalia. In his application for leave, he sought an order staying his deportation.
[3] The applicant"s stay application was heard by Mr. Justice Teitelbaum on July 23, 1998. On July 29, 1998, the application for a stay was denied by Mr. Justice Teitelbaum. He concluded that, while the applicant may be subject to risk or may be subject to irreparable harm, this fact alone is not sufficient reason not to be removed from Canada. The applicant had failed to show an arguable case and the balance of convenience favoured carrying out the deportation order.
[4] In reaching his decision, Mr. Justice Teitelbaum considered that the applicant was landed as a Convention refugee in 1990 and embarked on a career of crime. The applicant was found by the Minister"s delegate to be a danger to the public. The applicant did not contest the validity of the deportation order.
[5] On July 10, 1998, the applicant also filed another application for leave to commence an application for judicial review of a decision of the Minister"s delegate, made on February 28, 1997, that the applicant constitutes a danger to the public in Canada pursuant to subsection 70(5) of the Immigration Act and pursuant to paragraph 53(1)(d) of the Act. The applicant now seeks an order staying his removal in this proceeding.
[6] The applicant made no argument with respect to whether the Minister"s delegate erred in forming the opinion that he constituted a danger to the public in Canada in either written or oral argument before Mr. Justice Teitelbaum.
[7] The applicant submits there is a serious issue to be tried in this proceeding because extrinsic evidence was relied on by the Minister in forming the opinion. This evidence relates to a telephone conversation between an Immigration Officer and a Correctional Officer who advised that the applicant had been denied parole. The applicant was present at the Parole Board hearing.
[8] Further, a copy of all documents considered by the Minister"s delegate was provided to applicant"s counsel on July 22, 1998, prior to the hearing before Mr. Justice Teitelbaum. Counsel for the respondent submits that, except that the applicant now challenges the decision of the Minister on the basis of extrinsic evidence, the applicant seeks the same relief and asserts the same rights as he did on the first motion before Mr. Justice Teitelbaum. The complete record containing the extrinsic evidence was provided to the applicant"s counsel prior to the hearing of the first motion before Mr. Justice Teitelbaum.
[9] Counsel for the respondent argues that a reasonably diligent applicant could have discovered the information at that time and raised it at the hearing of the first motion.
[10] The respondent argues that the matter is res judicata. Counsel relies on this passage by George Spencer Bower in The Doctrine of Res Judicata, 2nd ed. (London: Butterworths, 1969) at page 160:
| whenever it is shown that the party against whom a judicial decision is ultimately pronounced omitted to raise by pleading, argument, evidence, or otherwise some question or issue, or point which he could have raised in his favour by way of defence or support for his case without detriment to his position or interests in the pending, or in future proceedings, and which, therefore, it was his duty to raise, the adverse general decision, though it contains no express declaration to that effect, is deemed to carry with it a particular adverse decision on the question, issue, or point so omitted to be raised, just as much as if it had been expressly raised by the party and expressly determined against him. And this is so whether the question or issue is simply passed over through inadvertence or is made the subject of express or implied assumption. |
[11] Counsel also relied on Raman v. Canada (1995), 30 Imm. L.R. (2d) 300 at page 305 where Mr. Justice Gibson stated:
| Nothing has changed since the bringing of the first application to stay an execution of the exclusion order except that the applicant has brought forward additional evidence specific to the issue of irreparable harm... The applicant seeks the same relief and asserts the same rights as in the first application. The applicant challenges the same action of the respondent. The applicant offered no explanation as to why the additional evidence could not have been brought forward at the hearing of the first stay application save for the lack of time to research and assemble the evidence... |
[12] Although, the information which counsel for the applicant claims constitutes extrinsic evidence was communicated to counsel on July 22, 1998, it was received along with other material at 7:00 o"clock in the evening. In the circumstances, I am not prepared to say that counsel could have raised it at the hearing on the following day or that counsel was not diligent.
[13] In order to obtain a stay, the burden is on the applicant to establish that there is a serious issue to be tried, that irreparable harm would result if the relief is not granted and that the balance of convenience favours the applicant.
[14] On the question of a serious issue to be tried, I have a doubt that the information that counsel for the applicant claims is extrinsic evidence falls in that category. It is information that was known to the applicant, the only matter not disclosed until July 22, 1998, was that the information had been given to the Immigration Officer.
[15] Even if I were to conclude that this proceeding raises a serious issue, I am not called upon to review the decision of Mr. Justice Teitelbaum. Mr. Justice Teitelbaum found that the balance of convenience favoured the respondent, in the circumstances, and that the applicant had not satisfied each of the requirements of the three-part test. In my opinion, the balance of convenience continues to favour the respondent.
[16] The motion for a stay is denied.
____________________________
Associate Chief Justice
Ottawa, Ontario
August 5, 1998