Mubenga v. Canada (Minister of Citizenship and Immigration), 2015 FC 111

• Judge: Roy, J.
• Court: Federal Court (Canada)
• Case Date: January 28, 2015
• Jurisdiction: Canada (Federal)
• Citations: 2015 FC 111;(2015), 475 F.T.R. 13 (FC)

Mubenga v. Can. (M.C.I.) (2015), 475 F.T.R. 13 (FC)

MLB headnote and full text

[French language version follows English language version]

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

.........................

Temp. Cite: [2015] F.T.R. TBEd. FE.034

Fnu Kamuanya Mubenga (partie demanderesse) v. Le Ministre de la Citoyenneté et Immigration (partie défenderesse)

(IMM-7800-14)

Fnu Kamuanya Mubenga (partie demanderesse) v. Le Ministre de la Citoyenneté et Immigration (partie défenderesse)

(IMM-7801-14; 2015 CF 111; 2015 FC 111)

Indexed As: Mubenga v. Canada (Minister of Citizenship and Immigration)

Federal Court

Roy, J.

January 28, 2015.

Summary:

Mubenga claimed refugee protection when she arrived in Canada in 2003. On January 7, 2004, a refugee protection officer recommended that the claim be accepted without a hearing. On February 19, 2004, a member of the Refugee Protection Division remitted the claim for determination at a hearing. The Refugee Protection Division issued a decision in the matter on August 25, 2004. More than 10 years later, Mubenga applied for leave to apply for judicial review of the January 7, 2004 decision (docket IMM-7800-14) and for leave to apply for judicial review of the August 25, 2004 decision (docket IMM-7801-14). The Minister of Citizenship and Immigration commenced two motions to peremptorily strike the applications.

The Federal Court allowed the motion to strike the application in docket IMM-7800-14, but dismissed the motion to strike the application in docket IMM-7801-14.

Administrative Law - Topic 3357

Judicial review - General - Practice - Interlocutory proceedings - Application to strike - [See second Courts - Topic 4073 ].

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction - [See both Courts - Topic 4073 ].

Courts - Topic 4073

Federal Court of Canada - Jurisdiction - Federal Court - Practice - Striking out pleadings - Mubenga claimed refugee protection when she arrived in Canada in 2003 - On January 7, 2004, a refugee protection officer recommended that the claim be accepted without a hearing - On February 19, 2004, a member of the Refugee Protection Division remitted the claim for determination at a hearing - Mubenga applied for leave to apply for judicial review of the January 7, 2004 decision - The Minister of Citizenship and Immigration moved to peremptorily strike the application, relying on Federal Courts Rule 4 - Rule 4 provided that "On motion, the Court may provide for any procedural matter not provided for in these Rules or in an Act of Parliament by analogy to these Rules or by reference to the practice of the superior court of the province to which the subject-matter of the proceeding most closely relates." - The Federal Court noted that although Mubenga was a resident of Quebec, the Minister had made no reference to the practice of the Quebec Superior Court - He also did not make an analogy to those Rules - Without more, rule 4 could not be readily applied - Instead, it was appropriate for the court to invoke its inherent jurisdiction to dismiss the application - This was an exceptional circumstance where Mubenga's judicial review application was so amorphous as to be bereft of any possibility of success - She had sought judicial review of a "decision" that was completely favourable to her - Perhaps she wanted to object to the decision to not follow the January 7, 2004 recommendation, but that was not what she had done - See paragraphs 1 to 9.

Courts - Topic 4073

Federal Court of Canada - Jurisdiction - Federal Court - Practice - Striking out pleadings - Mubenga applied for leave to apply for judicial review of an August 25, 2004 decision of the Refugee Division respecting her claim for refugee protection - The Minister of Citizenship and Immigration moved to peremptorily strike the application - The Federal Court dismissed the motion - Mubenga's application was not amorphous - Although she was seeking judicial review of a decision issued more than 10 years ago, she was requesting an extension of time - The court should not encourage the wasting of resources and time by adding an interlocutory motion to strike to summary judicial review proceedings - If inherent jurisdiction to strike could be argued, then it had to be limited to cases where the notice of motion was so clearly improper as to be bereft of any possibility of success - The Minister was attempting to examine the merits of the judicial review motion to argue that there was no valid reason to grant an extension of time - That approach was premature - At the hearing of the leave application, it would be for Mubenga to argue the grounds that justified granting her leave, and that a delay of 10 years was justifiable under the legislation - The Minister would then be able to argue that leave should be dismissed because of the delay - See paragraphs 10 to 13.

Practice - Topic 14

General principles and definitions - Procedures not provided for in the rules - [See first Courts - Topic 4073 ].

Practice - Topic 2242

Pleadings - Striking out pleadings - Appeals, applications or originating motions - [See both Courts - Topic 4073 ].

Practice - Topic 2494

Writ of summons, endorsements, originating summons and originating notices - Originating notices (incl. judicial review) - Striking out - [See both Courts - Topic 4073 ].

Cases Noticed:

Bull (David) Laboratories (Canada) Inc. v. Pharmacia Inc. et al., [1995] 1 F.C. 588; 176 N.R. 48 (F.C.A.), refd to. [para. 8].

Sellathurai v. Canada (Minister of Public Safety and Emergency Preparedness), [2012] F.C. 243; 420 N.R. 235; 2011 FCA 223, refd to. [para. 8].

Statutes Noticed:

Federal Courts Rules, rule 4 [para. 7].

Counsel:

Fnu Kamuanya Mubenga, self-represented, for the applicant;

Émilie Tremblay, for the respondent.

Solicitors of Record:

William F. Pentney, Deputy Attorney General of Canada, Montreal, Quebec, for the respondent.

These motions in writing were considered at Ottawa, Ontario, by Roy, J., of the Federal Court, who delivered the following reasons for judgment on January 28, 2015.