PRACTICE |
Res Judicata |
Hussein v. Canada (Minister of Citizenship and Immigration)
IMM-4918-01
2001 FCT 1172, MacKay J.
31/10/01
5 pp.
Application for stay of removal heard two days after similar motion dismissed by Dubé J.--When application for stay heard, application for leave, judicial review not to postpone removal before completion of up-to-date risk assessment if returned to Somalia on file--Dubé J. found enforcement officer properly exercised discretion not to defer removal on "eleventh hour allegation of risk involved in applicant's return to Somalia"--When second application for stay heard, applicant had filed second application for leave, judicial review, seeking declaration Immigration Act, s. 48, providing for execution of removal order as soon as possible, or enforcement of it, contrary to rights assured by Charter, ss. 7, 12, when no up-to-date risk assessment conducted--Application dismissed--Record before Court on this application essentially same as that before Dubé J., except for underlying application for judicial review--No new evidence that became available only after matter heard by Dubé J. provided--While second application based on perceived Charter issue, not raising issue that could not have been raised two days before--Principle of res judicata and importance of recognizing finality of judicial decisions supporting determination to dismiss application for stay--Even if matter considered on merits, out of judicial comity would not reach different conclusion than that reached by Dubé J., unless convinced clearly wrong on basis of evidence before him--Not argued that Dubé J. in error--Charter argument not new issue--In circumstances herein not establishing serious issue--Moreover, since risk assessment completed three years ago, evidence before removal officer from other published sources about risk generally in Somalia not such that removal officer's decision not to postpone removal patently unreasonable--Immigration Act, R.S.C., 1985, c. I-2, s. 48--Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44), ss. 7, 12.