Hernandez v. Canada ( Solicitor General )
T-1875-93
Dubé J.
22/9/93
7 pp.
Application for interlocutory injunction restraining defendants from executing removal order pending completion of action attacking aspects of refugee determination and post-determination processes under Immigration Act and seeking declaration processes violating Charter rights -- Plaintiff, citizen of Philippines, worked as police officer investigating corruption of senior police officers with Manila civic administration -- Fleeing to Canada in 1989 -- Application for Convention refugee status dismissed by Refugee Determination Division and appeal denied by Federal Court of Appeal -- Removal arrangements commenced -- Although usual procedure to obtain leave to commence judicial review and to seek stay of removal order, Mahabir v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 133 (C.A.) leaving open option of proceeding by way of action -- Application allowed -- Serious issue to be tried in view of finding in companion motion to strike statement of claim not plain and obvious no cause of action -- Plaintiff addressing issue of whether prohibition against subsequent refugee claims by persons remaining in Canada violating Charter, s. 7 rights from novel perspective i.e. change of circumstances in country of origin since first claim -- Irreparable harm to plaintiff based on physical danger if returned to Philippines demonstrated -- Letter from plaintiff's former superior in team investigating corruption stating political and criminal enemies threatening plaintiff's life and looking for him -- Inconvenience to plaintiff greater than that caused to Minister by delay in executing removal order -- Federal Court Rules, C.R.C., c. 663, R. 419 -- 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], s. 7.