Omobude v. Canada (Minister of Citizenship and Immigration), 2015 FC 602

• Judge: Bédard, J.
• Court: Federal Court (Canada)
• Case Date: May 06, 2015
• Jurisdiction: Canada (Federal)
• Citations: 2015 FC 602;(2015), 480 F.T.R. 266 (FC)

Omobude v. Can. (M.C.I.) (2015), 480 F.T.R. 266 (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. MY.031

Rachael Omobude (demanderesse) v. Le Ministre de la Citoyenneté et de l'Immigration (défendeur)

(IMM-5517-13; 2015 CF 602; 2015 FC 602)

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

Federal Court

Bédard, J.

May 8, 2015.

Summary:

The Immigration Appeal Division (IAD) concluded that the applicant was inadmissible on grounds of serious criminality under s. 36(1)(a) of the Immigration and Refugee Protection Act. The IAD further held that s. 36(3)(a) was not unconstitutional, that the issuance of a removal order did not engage the constitutional rights guaranteed by the Charter, and that it was premature at the removal order issuance stage to rule on the constitutional arguments raised by the applicant. The IAD invited the parties to present their arguments on the issue of humanitarian and compassionate considerations under s. 69(2) of the Act. The applicant applied for judicial review. The Minister argued that the IAD's decision was an interlocutory decision and that an application for judicial review of that decision was premature.

The Federal Court dismissed the application. The applicant did not establish any exceptional circumstances to warrant the judicial review of the IAD's interlocutory decision.

Administrative Law - Topic 3302

Judicial review - General - Bars - Alternate remedy - [See Aliens - Topic 4064 ].

Administrative Law - Topic 3348

Judicial review - General - Practice - Time for application - [See Aliens - Topic 4064 ].

Administrative Law - Topic 3357

Judicial review - Practice - Interlocutory proceedings - [See Aliens - Topic 4064 ].

Administrative Law - Topic 7096

Judicial review - Bars - Discretionary bars - Existence of convenient or adequate alternative remedy - [See Aliens - Topic 4064 ].

Administrative Law - Topic 9117

Boards and tribunals - Judicial review - Review of interlocutory orders - [See Aliens - Topic 4064 ].

Aliens - Topic 1746

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Persons convicted of crime - [See Aliens - Topic 4064 ].

Aliens - Topic 4064

Practice - Judicial review and appeals - Judicial review - Time for - The Immigration Appeal Division (IAD) concluded that the applicant was inadmissible on grounds of serious criminality under s. 36(1)(a) of the Immigration and Refugee Protection Act - The IAD further held that s. 36(3)(a) was not unconstitutional, that the issuance of a removal order did not engage the constitutional rights guaranteed by the Charter, and that it was premature at the removal order issuance stage to rule on the constitutional arguments raised by the applicant - The IAD invited the parties to present their arguments on the issue of humanitarian and compassionate considerations under s. 69(2) of the Act - The applicant applied for judicial review - The Minister argued that the IAD's decision was an interlocutory one that was not judicially reviewable - The applicant replied that the IAD's decision was final because the Minister's appeal concerned only the constitutionality of s. 36(3)(a) - The Federal Court agreed with the Minister - "[B]arring exceptional circumstances, interlocutory decisions cannot be submitted for judicial review before all internal remedies have been exhausted ... Further, only at the end of the administrative process will a reviewing court have all of the administrative decision-maker's findings ... Finally, this approach is consistent with and supports the concept of judicial respect for administrative decision-makers ... [T]he presence of an important legal or constitutional issue is not an exceptional circumstance allowing parties to bypass an administrative process and to seek judicial review of an interlocutory decision." - In finding the applicant inadmissible, the IAD rendered an interlocutory decision that did not terminate the appeal process - It was not impossible that the applicant would win the appeal and that the removal order would never become enforceable - The applicant had not established any exceptional circumstances - If dissatisfied with the IAD's humanitarian and compassionate decision, the applicant could apply for judicial review and submit her arguments, including those respecting the IAD's interlocutory decision.

Cases Noticed:

Poshteh v. Canada (Minister of Citizenship and Immigration) (2005), 331 N.R. 129; 2005 FCA 85, refd to. [para. 12].

Barrera v. Minister of Employment and Immigration, [1993] 2 F.C. 3; 151 N.R. 28 (F.C.A.), refd to. [para. 12].

Santana v. Canada (Minister of Public Safety and Emergency Preparedness), [2013] F.T.R. Uned. 223; 2013 FC 477, refd to. [para. 12].

Coldwater Indian Band et al. v. Canada (Minister of Indian Affairs and Northern Development) et al. (2014), 466 N.R. 145; 2014 FCA 277, refd to. [para. 17].

Black v. Canada (Attorney General) (2013), 448 N.R. 196; 2013 FCA 201, refd to. [para. 17].

Powell (C.B.) Ltd. v. Canada Border Services Agency (President) et al. (2010), 400 N.R. 367; 2010 FCA 61, refd to. [para. 17].

Greater Moncton International Airport Authority v. Public Service Alliance of Canada et al., [2008] N.R. Uned. 19; 2008 FCA 68, refd to. [para. 17].

CHC Global Operations v. Global Helicopter Pilots Assoc., [2008] N.R. Uned. 143; 2008 FCA 345, refd to. [para. 17].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 36(1)(a), sect. 36(30(a) [para. 6].

Counsel:

Stéphane Handfield, for the applicant;

Michel Pépin, for the respondent.

Solicitors of Record:

Stéphane Handfield, Advocate, Montreal, Quebec, for the applicant;

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

This application for judicial review was heard at Montreal, Quebec, on May 6, 2015, before Bédard, J., of the Federal Court, who delivered the following judgment and reasons, dated May 8, 2015.