Date: 20040128
Docket: IMM-515-04
Citation: 2004 FC 137
Toronto, Ontario, January 28th, 2004
Present: The Honourable Mr. Justice Phelan
BETWEEN:
CIHANGIR KIZIL
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
THE SOLICITOR-GENERAL OF CANADA
Respondents
REASONS FOR ORDER AND ORDER
Nature of Proceedings
[1] The Applicant, a citizen of Turkey, seeks an Order from this Court staying his removal from Canada to Turkey scheduled for Friday, January 30, 2004.
[2] The underlying application for leave and for judicial review to which the stay is being sought pertains to a decision made by the Immigration Appeal Division ("IAD") on October 10, 2001 declaring the Applicant's appeal abandoned.
[3] The Applicant has also applied for an extension of time within which to file his application for leave and for judicial review of the IAD decision pursuant to s.72(2)(c) of the Immigration and Refugee Protection Act ("IRPA").
[4] The Respondent requested that the Solicitor-General of Canada be added as a party due to the reorganization of ministerial responsibilities.
Facts
[5] The Applicant, a 38 years old male, came to Canada in 1989 as a visitor. He made a refugee claim that was rejected by the Refugee Division of the Immigration and Refugee Board on April 22, 1993.
[6] The Applicant was convicted of a number of criminal offences between 1999 and 2001.
[7] On the basis of the last conviction for break and enter, the Applicant was found to be a person described in s. 27(1)(d) of the formerImmigration Act and a deportation order was issued on June 13, 2001.
[8] The Applicant filed a Notice of Appeal of the removal order. The Notice gave his address and indicated that he was arranging for the appointment of counsel.
[9] The IAD sent a letter of August 14, 2001 to the Applicant's address requiring receipt of a copy of the deportation order and indicating that failure to comply could result on his appeal being declared abandoned. The IAD's letter was returned 3 weeks later indicating that the Applicant was no longer at that address.
[10] As previously indicated as a likely possibility, the IAD, having heard nothing further from the Applicant, declared the appeal abandoned on October 10, 2001. The notice of that decision was sent by the IAD to the wrong address and the Applicant says that he had no notice of that decision.
[11] Approximately 4 months later, Stephen Harvey advised the IAD that he was representing the Applicant. Notwithstanding this advice, the Applicant has not filed a motion to reopen his appeal.
[12] The Applicant alleges all manner of negligence, misrepresentation and professional misconduct against Mr. Harvey for failure to take steps to protect his interests. Other than the allegations, there is nothing before the Court which would, if it could, allow the Court to establish whether there is any basis for allegations.
[13] What can be established is that the Applicant, having received proper notice in 2003, failed to attend at two interviews scheduled by the Removals Section because, as he attests in his affidavit, he was afraid that he would be arrested. He was ultimately arrested for not attending.
[14] The Applicant also applied for a Pre-Removal Risk Assessment ("PRRA") which was ultimately adjudged against his claim that he would be at risk if he was returned to Turkey.
Reasons
[15] In essence the Applicant asserts that the serious legal issue is the conduct of his counsel in not challenging the IAD and the fact that he did not receive the notice that his appeal was abandoned.
[16] The Applicant contends that he would suffer irreparable harm because he would be unhappy to leave Canada, that his appeal rights would be harmed such that compensation is not adequate.
[17] There is 2 ½ years between the Notice of Appal of the IAD decision and this current Application for Leave. No Leave has been filed to date in respect of the PRRA decision.
[18] It is important to note that a deportation order had to be issued in the face of the convictions registered against the Applicant. The Applicant has been unable to articulate a basis for challenging the core decision of the IAD. All of the arguments relate to matters post-decision.
[19] With respect to those post-IAD matters they all revolve around allegations against former counsel. In considering this aspect of the motion I adopt the reasoning of Pelletier J. (as he then was) in Nunez v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 555 and in particular paragraph 19 thereof:
I am not prepared to accept an allegation of serious professional misconduct against a member of the bar and an officer of this Court without having the member's explanation for the conduct in question or evidence that the matter has been referred to the governing body for investigation. In this case, there was ample opportunity to do one or the other but neither was done. The failure to do so is inconsistent with the gravity of the allegations made. This is not a question of being solicitous of lawyers' interests at the expense of their clients. It is a question of recognizing that allegations of professional negligence are easily made and, if accepted, generally result in the relief sought being granted. The proof offered in support of such an allegation should be commensurate with the serious nature of the consequences for all concerned.
[20] With regard to the claim that irreparable harm would occur, I note that the PRRA was negative, the harm alleged is either speculative or flows naturally from a deportation order.
[21] In addition, as held in Ward v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 86, the removal of an applicant does not, in and of itself, constitute irreparable harm.
[22] To the extent that anything need be said about the balance of convenience, the Applicant's conduct from his criminal activities to his refusal to attend interviews clearly indicates that the balance is not in his favour.
ORDER
THIS COURT ORDERS that:
1. The Solicitor General of Canada is added as a party Respondent.
2. The motion for a stay of the removal of the Applicant is denied.
"Michael L. Phelan"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-515-04
STYLE OF CAUSE: CIHANGIR KIZIL
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION, THE SOLICITOR-GENERAL
OF CANADA
Respondents
DATE OF HEARING: JANUARY 26, 2004
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: PHELAN J.
DATED: JANUARY 28, 2004
APPEARANCES BY:
Mr. Patrick T. McCool
FOR THE APPLICANT
Ms. Andrea Hammell
FOR THE RESPONDENTS
SOLICITORS OF RECORD:
Mr. Patrick T. McCool
Rexdale, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR THE RESPONDENTS
FEDERAL COURT
Date: 20040128
Docket: IMM-515-04
BETWEEN:
CIHANGIR KIZIL
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION, THE SOLICITOR-GENERAL OF CANADA
Respondents
REASON FOR ORDER
AND ORDER