COURT OF APPEAL FOR ONTARIO

CITATION: Chaudhary v. Canada (Public Safety and Emergency Preparedness), 2015 ONCA 678

DATE: 20151006

DOCKET: M45598 (C60223)

Juriansz J.A. (In Chambers)

BETWEEN

Amina Chaudhary, Michael Mvogo, Carmelo Bruzzese and Glory Anawa

Moving party

(Appellants on appeal)

and

Minister of Public Safety and Emergency Preparedness, Minister of Citizenship and Immigration, Attorney General of Canada, Attorney General of Ontario and Superintendent of the Central East Correctional Centre

Responding parties

(Respondents on appeal)

Barbara Jackman and Rebecca Lockwood, for the moving party

James Todd and Jocelyn Espejo-Clarke, for the responding parties

Heard: October 1, 2015

ENDORSEMENT

[1] The moving party has brought an urgent motion on short notice to stay an order issued by the Immigration Division of the Immigration and Refugee Board that he be deported from Canada to Italy in the next few days. Upon hearing the arguments of the parties, I dismissed the moving party’s motion with brief oral reasons to be supplemented by written reasons. These are those reasons.

[2] In the motion, the moving party sought a stay of his deportation pending the release of this court’s decision in his appeal heard May 6, 2015. In that appeal he, along with other appellants, argued that the Superior Court erred by declining to hear their habeas corpus applications. In declining jurisdiction, the applications judge relied on the “Peiroo exception” to habeas corpus, emanating from this court’s decision in Peiroo v. Minister of Employment and Immigration (1989), 1989 CanLII 184 (ON CA), 69 O.R. (2d) 253, leave to appeal refused, [1989] S.C.C.A. No. 322. The Peiroo exception precludes habeas corpus in immigration matters where the *Immigration and Refugee Protection Act*, S.C. 2001, c. 27 (“IRPA”) provides a complete, comprehensive and expert statutory scheme for a review that is at least as broad as and no less advantageous than habeas corpus.

[3] Each appellant has been subjected to lengthy detention pursuant to the provisions of the *IRPA*. In advancing the argument in the appeal, the moving party and the other appellants carefully attempted to distinguish their cases from Peiroo. They did so by arguing that they sought habeas corpus not for the purpose of reviewing any immigration determination, but for a finding that their lengthy and indeterminate detentions could no longer be justified for immigration reasons.

[4] This court has no original jurisdiction to hear the motion. Therefore, I do not need to consider the moving party’s several arguments that his deportation would compromise his safety and violate his rights. One argument worth noting is that his deportation is a disguised extradition and, hence, an abuse of process. The moving party advanced this argument on his appeal as well. However, this matter is well within the ambit of judicial review before the Federal Court. In fact, the moving party has already advanced the argument unsuccessfully before the Federal Court. In my view, the statutory scheme for review of deportation decisions, which includes judicial review in the Federal Court, is at least as broad as and no less advantageous than habeas corpus.

[5] The only question raised by the application is whether the deportation order should be stayed to await this court’s decision in the appellant’s appeal. I need only consider (1) whether there is a serious question to be tried; (2) whether the moving party would suffer irreparable harm if the order were not stayed until the release of the court’s decision, and (3) whether the balance of convenience favours the granting of the stay.

[6] In my view, there is no serious question to be tried. The deportation order is an immigration determination that is independent of the issues raised in the appeal. If the moving party is successful on the appeal and on his habeas corpus application, it might affect his detention, but it would not affect the validity of the deportation order. Even if the moving party were not detained but at large, he would still be subject to the deportation order. In fact, his deportation would bring an end to the lengthy and allegedly indeterminate detention he seeks to review by way of habeas corpus.

[7] The motion to stay the deportation order is dismissed. Costs in the amount of $1000 are fixed against the moving party.

“R.G. Juriansz J.A.”