Almrei v. Canada (Minister of Citizenship and Immigration) et al., (2014) 466 F.T.R. 159 (FC)

• Judge: Mosley, J.
• Court: Federal Court (Canada)
• Case Date: July 03, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2014), 466 F.T.R. 159 (FC);2014 FC 1002

Almrei v. Can. (M.C.I.) (2014), 466 F.T.R. 159 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] F.T.R. TBEd. MR.074

Hassan Almrei (applicant) v. The Minister of Citizenship and Immigration and The Minister of Public Safety and Emergency Preparedness (respondents)

(IMM-5885-13; 2014 FC 1002; 2014 CF 1002)

Indexed As: Almrei v. Canada (Minister of Citizenship and Immigration) et al.

Federal Court

Mosley, J.

October 23, 2014.

Summary:

Almrei, a citizen of Syria, applied for permanent resident status in 2000. In the course of security certificate proceedings, his application was terminated. The security certificate was quashed. A second certificate was quashed in 2009. During these events, Almrei was held in detention for over seven years. Almrei unsuccessfully sought judicial review of the decision rejecting his application. In 2010, he brought a fresh application on humanitarian and compassionate grounds. In 2012, he applied for leave and for judicial review, seeking an order of mandamus to compel the Minister of Citizenship and Immigration to make a decision on his request for permanent residence. Leave was granted, and the application was set down for hearing. At the "eleventh hour", a procedural fairness letter was delivered, stating that the Minister was considering finding Almrei inadmissible on grounds of organized criminality. The hearing was adjourned sine die. Almrei then brought the underlying application for declaratory and injunctive relief against the respondent Ministers. The Ministers moved for an order that the request for relief was premature in that a final decision on the application for permanent residence would not be made until after Almrei responded to the procedural fairness letter. The determination of Almrei's admissibility and application for permanent residence was stayed. Almrei sought an order dismissing the motion with costs.

The Federal Court dismissed the Ministers' motion, and upheld the stay. "[T]his is one of the rare cases where a court should exercise its discretion to intervene before an administrative decision has been rendered." The Court awarded costs in favour of Almrei.

Administrative Law - Topic 25

General - Abuse of process - Multiplicity of proceedings - [See Administrative Law - Topic 3302 ].

Administrative Law - Topic 3302

Judicial review - General - Bars - Alternate remedy - This matter concerned a series of proceedings against the applicant, including security certificate proceedings, arising from the same activities - The primary issue at this stage was whether the applicant's request for declaratory and injunctive relief was premature, in that a final decision on his application for permanent residence would not be made until after he responded to a procedural fairness letter delivered to the applicant at "the eleventh hour" - The Minister of Citizenship and Immigration was considering finding the applicant inadmissible on grounds of organized criminality relating to transnational criminal activity - The allegations related to the commission of passport and other document frauds - The Federal Court held that "this is one of the rare cases where a court should exercise its discretion to intervene before an administrative decision has been rendered. I am not satisfied that the applicant has an alternative remedy available to him that is an 'adequate effective recourse' to the allegations against him ... . The factors favouring intervention outweigh those that support deference to the administrative function. ... [T]he exceptional circumstances pointing to a finding of abuse of process meet the 'clear and obvious' standard which warrants judicial intervention at this stage" - See paragraph 60.

Administrative Law - Topic 7096

Judicial review - Bars - Discretionary bars - Existence of convenient or adequate alternative remedy - [See Administrative Law - Topic 3302 ].

Aliens - Topic 1747.1

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of criminal organization - [See Administrative Law - Topic 3302 ].

Aliens - Topic 4064

Practice - Judicial review - Time for (incl. extension of) - [See Administrative Law - Topic 3302 ].

Aliens - Topic 4105

Practice - Costs - For special reasons - The respondent Ministers brought a motion for an order that the application for leave and for judicial review in this matter was premature - The applicant successfully sought an order dismissing the motion, with costs - The Federal Court held that, in the particular circumstances, there were special reasons for awarding costs in favour of the applicant - "The present application for leave and for judicial review resulted from the delivery, at the eleventh hour prior to the hearing of a mandamus application, of notice of a new inquiry on grounds long known to the respondents. It was open to the respondents to allow the application for mandamus to proceed to a leave decision and a hearing on the merits. Their decision to bring this unsuccessful motion resulted in additional costs to the applicant. It should come at a price. I fix that price at a lump sum of $3000.00 inclusive of disbursements." - See paragraphs 64 to 66.

Aliens - Topic 4106

Practice - Costs - To or against Minister, Crown, Canada, etc. - [See Aliens - Topic 4105 ].

Cases Noticed:

Charkaoui, Re, [2007] 1 S.C.R. 350; 358 N.R. 1; 2007 SCC 9, refd to. [para. 3].

Almrei, Re, [2011] F.C. 1241; 355 F.T.R. 222; 2009 FC 1263, refd to. [para. 3].

Powell (C.B.) Ltd. v. Canada Border Services Agency (President) et al., [2011] 2 F.C.R. 332; 400 N.R. 367; 2010 FCA 61, refd to. [para. 19].

Halifax (Regional Municipality) v. Human Rights Commission (N.S.) et al., [2012] 1 S.C.R. 364; 428 N.R. 107; 316 N.S.R.(2d) 1; 1002 A.P.R. 1; 2012 SCC 10, refd to. [para. 20].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 20].

Black v. Canada (Attorney General) (2013), 448 N.R. 196; 232 A.C.W.S.(3d) 808; 2013 FCA 201, refd to. [para. 20].

Garrick et al. v. Amnesty International Canada et al. (2011), 397 F.T.R. 213; 2011 FC 1099, refd to. [para. 21].

JP Morgan Asset Management (Canada) Inc. v. Minister of National Revenue et al., [2014] 2 F.C. 250; 450 N.R. 91; 2013 FCA 250, refd to. [para. 22].

Szczecka v. Ministre de l'Emploi et de l'Immigration (1993), 170 N.R. 58; 116 D.L.R.(4th) 333 (F.C.A.), refd to. [para. 24].

Beltran v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 304; 2011 FC 516, refd to. [para. 32].

Tursunbayev v. Canada (Minister of Public Safety and Emergency Preparedness), 2012 FC 532, refd to. [para. 32].

John Doe v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 197; 2007 FC 327, refd to. [para. 32].

Air Canada v. Lorenz et al., [2000] 1 F.C. 494; 175 F.T.R. 211 (T.D.), consd. [para. 32].

Canada (Minister of Citizenship and Immigration) v. Parekh (2010), 372 F.T.R. 196; 2010 FC 692, refd to. [para. 37].

Penner v. Niagara Regional Police Services Board et al., [2013] 2 S.C.R. 125; 442 N.R. 140; 304 O.A.C. 106; 2013 SCC 19, refd to. [para. 43].

Al Yamani v. Canada (Minister of Citizenship and Immigration) (2003), 314 N.R. 347; 2003 FCA 482, leave to appeal refused (2004), 332 N.R. 396 (S.C.C.), refd to. [para. 44].

J.P. et al. v. Canada (Minister of Public Safety and Emergency Preparedness) (2013), 451 N.R. 278; 2013 FCA 262, leave to appeal granted (2014), 474 N.R. 385 (S.C.C.), refd to. [para. 44].

Behn v. Moulton Contracting Ltd. - see Moulton Contracting Ltd. v. British Columbia et al.

Moulton Contracting Ltd. v. British Columbia et al. (2013), 443 N.R. 303; 333 B.C.A.C. 34; 571 W.A.C. 34; 2013 SCC 26, refd to. [para. 45].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 46].

Lopes v. Canada (Minister of Citizenship and Immigration) (2010), 367 F.T.R. 41; 2010 FC 403, refd to. [para. 46].

Gwala v. Canada (Minister of Citizenship and Immigration), [1999] 3 F.C. 404; 242 N.R. 173 (F.C.A.), refd to. [para. 54].

Kanthasamy v. Canada (Minister of Citizenship and Immigration) (2014), 459 N.R. 367; 2014 FCA 113, refd to. [para. 55].

Subhaschandran v. Canada (Attorney General) et al. (2005), 331 N.R. 182; 2005 FCA 27, refd to. [para. 69].

Boni v. Canada (Minister of Citizenship and Immigration) (2006), 357 N.R. 326; 2006 FCA 68, refd to. [para. 70].

Statutes Noticed:

Federal Courts Citizenship, Immigration and Refugee Protection Rules - see Immigration and Refugee Protection Act Regulations (Can.), Federal Courts Citizenship, Immigration and Refugee Protection Rules.

Federal Courts Rules, SOR/98-106, rule 400 [para. 65].

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 37(1)(b) [para. 7]; sect. 74(d) [para. 68].

Immigration and Refugee Protection Act Regulations (Can.), Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, rule 22 [para. 64].

Counsel:

Lorne Waldman, for the applicant;

Gregory George and Ada Mok, for the respondents.

Solicitors of Record:

Waldman & Associates, Ottawa, Ontario, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondents.

This motion was heard at Ottawa, Ontario, on July 3, 2014, before Mosley, J., of the Federal Court, who delivered the following order and reasons, dated October 23, 2014, at Ottawa, Ontario.