Hosein v. Minister of Employment and Immigration, (1992) 53 F.T.R. 86 (TD)

• Judge: MacKay, J.
• Court: Federal Court (Canada)
• Case Date: March 16, 1992
• Jurisdiction: Canada (Federal)
• Citations: (1992), 53 F.T.R. 86 (TD)

Hosein v. MEI (1992), 53 F.T.R. 86 (TD)

MLB headnote and full text

In The Matter Of the Immigration Act, R.S.C. 1985, c. I-2, as amended R.S.C., c. 28 and 29 of the Regulations thereto;

And In The Matter Of the Canadian Charter of Rights and Freedoms, the Constitution Act, 1982;

And In The Matter Of a Decision of a Credible Basis Tribunal made on March 10, 1992.

Fazal Hosein (applicant) v. The Minister of Employment and Immigration (respondent)

(T-187-92)

Indexed As: Hosein v. Minister of Employment and Immigration

Federal Court of Canada

Trial Division

MacKay, J.

March 18, 1992.

Summary:

An alien applied to stay an inquiry before an immigration adjudicator pending his application for leave to commence judicial review proceedings respecting a credible basis hearing where the alien claimed he was denied an opportunity to present a s. 7 Charter argument.

The Federal Court of Canada, Trial Divi­sion, dismissed the application.

Aliens - Topic 4063

Practice - Judicial review - Leave to apply for judicial review - Stay of pro­ceedings pending - Hosein claimed he was denied an opportunity to argue his s. 7 Charter rights were violated at his credible basis hearing - He applied for a stay of proceedings pending his application for leave to commence judicial review pro­ceedings - The Federal Court of Canada, Trial Division, dismissed the application - The court stated that the credible basis hearing was not yet concluded and the court's jurisdiction would not be rendered nugatory if a stay was not granted - Hos­ein could still raise his Charter issue upon giving appropriate notice to the Attorneys General under s. 57 of the Federal Court Act.

Courts - Topic 4032.1

Federal Court of Canada - Jurisdiction - Trial Division - Stay of proceedings - General - Section 18.2 of the Federal Court Act provided that on an application for judicial review the court may make such interim orders as it considers appro­priate - The Federal Court of Canada, Trial Division, stated that "the court's jurisdiction to order a stay of proceedings is not limited by s. 18.2 of the Federal Court Act by the necessity to apply for leave to seek judicial review, and in an appropriate case, particularly one where the issue raised in an application for leave is arguable, but would be moot or the jurisdiction of the court would be rendered nugatory by failure to grant a stay, a stay may be ordered within the discretion of the court." - See paragraph 6.

Cases Noticed:

Toth v. Minister of Employment and Im­migration (1988), 86 N.R. 302 (F.C.A.), refd to. [para. 6].

Yhap v. Minister of Employment and Immigration (1989), 29 F.T.R. 233; 9 Imm. L.R.(2d) 69 (F.C.T.D.), refd to. [para. 6].

Metropolitan Stores (MTS) Ltd. et al. v. Manitoba Food and Commercial Workers Union, Local 832 and Labour Board (Man.), [1987] 1 S.C.R. 110; 73 N.R. 341; 46 Man.R.(2d) 241; 38 D.L.R.(4th) 321; 18 C.P.C.(2d) 273; 25 Admin. L.R. 20, refd to. [para. 8].

James v. Minister of Employment and Immigration (1991), 45 F.T.R. 139 (F.C.T.D.), refd to. [para. 9].

Singh (Mahadri Jaipaul) v. Minister of Employment and Immigration (1991), 46 F.T.R. 184 (F.C.T.D.), refd to. [para. 9].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 2].

Federal Court Act, R.S.C. 1985, c. F-7, sect. 18 [para. 2]; sect. 57 [para. 10].

Immigration Act, R.S.C. 1985, c. I-2, sect. 18.2, sect. 82.1 [para. 6].

Counsel:

Barbara Jackman, for the applicant;

Bonnie Boucher, for the respondent.

Solicitors of Record:

Hoppe, Jackman, Toronto, Ontario, for the applicant;

John C. Tait, Q.C., Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the respondent.

This application was heard on March 16, 1992, at Toronto, Ontario, before MacKay, J., of the Federal Court of Canada, Trial Division, who delivered the following judg­ment on March 18, 1992.