Singh v. Canada ( Minister of Citizenship and Immigration )
IMM-4825-98
Evans J.
23/4/99
9 pp.
Motion for interim injunction to restrain Minister from removing applicant to India prior to determination of constitutional issues raised in statement of claim-Applicant, citizen of India and Sikh, recognized as Convention refugee, but Minister refusing to grant him permanent resident status because reasonable grounds to believe member of terrorist organization, within inadmissible class under Immigration Act, s. 19(1)(e), (f)-Deportation order issued-Applicant filing statement of claim challenging constitutionality of Immigration Act, ss. 19(1)(e), (f), 53-S. 53 prohibiting removal of refugee to country where life, liberty threatened for enumerated reasons, except where person member of inadmissible class by virtue of s. 19(1)(e), (f) and Minister of opinion person constituting danger to security of Canada-Minister not yet rendering decision under s. 53 at time applicant brought motion for interim injunction, but before motion heard Minister forming opinion under s. 53(1)(b) applicant constituting danger to security of Canada-Motion dismissed-Exercise of Court's discretion to grant interim injunction governed by tripartite test established in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311-Applicant will not suffer irreparable harm if interim injunction not granted-On application for judicial review of Minister's decision, applicant may challenge constitutionality of decision-making process by arguing not complying with principles of fundamental justice, or arguing Minister's application of s. 53 to material before her violating applicant's right to life, liberty, security of person or constituting cruel, unusual punishment or treatment contrary to Charter-As Minister not called upon to interpret, apply s. 19(1)(e), (f) in course of s. 53 determination, issue cannot be raised on application for judicial review-But in light of McAllister v. Canada (Minister of Citizenship and Immigration), [1996] 2 F.C. 190 (T.D.), Court not persuaded serious question about validity of relevant provisions of s. 19(1)-Wherever feasible Court should encourage parties to challenge legality of governmental action on application for judicial review, designed to ensure expeditious hearing-To ensure applicant having reasonable opportunity to raise constitutionality of s. 53, order providing applicant not to be removed for 14 days from date of this order-Immigration Act, R.S.C., 1985, c. I-2, ss. 19(1)(e) (as am. by S.C. 1992, c. 49, s. 11), (f) (as am. idem), 53 (as am. idem, s. 43).