OSMAN GABIER OSMAN SAADELDIN Applicant v. MINISTER OF, 2017 FC 839

Date: 20170919 Docket: IMM-3233-17 Citation: 2017 FC 839 Ottawa, Ontario, September 19, 2017 PRESENT: The Honourable Mr.

Justice Manson BETWEEN: OSMAN GABIER OSMAN SAADELDIN Applicant and MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondent ORDER AND REASONS UPON application by the Applicant for an order of costs in the amount of $1500 and for such further order and for direction as the Court deems just, pursuant to Rule 369 of the Federal Courts Rules , SOR/98-106 and Rule 22 of the Federal Courts Immigration and Refugee Protection Rules, SOR/93-22 [ FCIRPR ]; AND UPON considering the written representations of the parties dated August 21, 2017, August 31, 2017 and September 8, 2017; IT IS HEREBY ORDERED that the Applicant is awarded $750 in costs, payable forthwith by the Respondent, for the reasons that follow. [ 1 ] The Applicant’s refugee claim was denied on February 24, 2017.

The Board member found that the determinative issue related to the claimant’s identity and credibility as it relates to identity. [ 2 ] The Notice of Decision, dated March 21, 2017, stated that the Applicant could appeal to the Refugee Appeal Division (RAD). His former counsel incorrectly filed a notice of an Application for Leave and for Judicial Review to the Federal Court on April 12, 2017, instead of appealing to the RAD. [ 3 ] Under

section 159.91(1)(

a) of the Immigration and Refugee Protection Regulations , SOR/2002-227 and section 49(1) (

b) of the Immigration and Refugee Protection Act , SC 2001, c 27, the Applicant’s removal order came into force when he failed to file a notice of appeal to the RAD. [ 4 ] The Applicant’s removal was scheduled by the Canada Border Services Agency (CBSA) for Thursday, July 27, 2017. Removal was deferred by CBSA on Tuesday, July 25, 2017.

Counsel for the Applicant learned of the decision after the Stay Motion Record had been filed. [ 5 ] The Applicant had filed a request for deferral of removal pending determination of the extension of time application filed with the RAD on July 14, 2017, 11 days before CBSA issued its decision. [ 6 ] In the initial July 14, 2017 request, enclosing a copy of an Extension of Time application to the RAD and a copy of the Appeal Record, the two primary bases upon which the Applicant based his deferral request are: a .

The Board erred in determining that the Applicant was not a national of Sudan (contrary to the finding by CBSA that he is a national of Sudan and the reliance of CBSA on his valid passport to remove him); b .

The allegation that the Applicant had received inadequate representation from former counsel, who appealed to the Federal Court instead of to the RAD, causing the Applicant’s removal order to come into force and necessitating the Extension of Time application. [ 7 ] On July 17, 2017, the Applicant’s counsel sent further, lengthier submissions to the CBSA Enforcement officer. [ 8 ] The Applicant’s deferral request to CBSA was deemed refused on Friday, July 21, 2017, and preparation of the Stay Motion Record by counsel began on Saturday, July 22, 2017. [ 9 ] CBSA’s decision granting the deferral request was sent by fax to the Applicant’s counsel at 7:34am, on Tuesday, July 25, 2017, but counsel for the Applicant was not aware of that decision until after the motion had been filed later that same day, at 11:30am. [ 10 ] The Respondent argues that delays were at least in

part caused by the Applicant’s piece-meal submissions over the period of time from June 21, 2017 to July 17, 2017, and involved voluminous evidentiary material provided with only seven business days for the CBSA officer to read, assess and decide on the deferral request. [ 11 ] Further, the Respondent states that in the Applicant counsel’s letter of July 17, 2017, to the CBSA, counsel acknowledged delay up to then was solely her responsibility. [ 12 ] As such, the Respondent’s position is that there are no special reasons under Rule 22 of the FCIRPR to justify awarding costs in this matter.

[ 13 ] Contrary to the Respondent’s position that the Applicant’s counsel did not provide an adequate basis to understand and make a determination with respect to the merits of the Applicant’s deferral request until July 17, 2017, I find that the two basic issues which provide the foundation for the deferral request were brought to the CBSA Officer’s attention in the letter of June 21, 2017, from the Applicant’s counsel to the Officer.

Those issues were further clarified by evidence with the Applicant’s letter of July 14, 2017, eleven days before the decision was issued. [ 14 ] There is no reasonable justification for the delay by the CBSA’s Officer in granting the deferral request, which resulted in the Applicant being compelled to waste time and effort in preparing and filing the Applicant’s stay motion record on July 25, 2017. [ 15 ] Notwithstanding that the grant of deferral was faxed to the Respondent several hours before the Applicant’s motion record was served and filed does not negate the fact that the record was substantially completed by the time that the notice was given. [ 16 ] In Diallo v Canada (MPSEP) , 2010 FC 965 , an award of costs was granted on the basis that the Respondent unnecessarily opposed the Applicant’s motion for a stay of his removal.

In addition, Justice Gibson set out the following: III. Analysis - Principles 16 The threshold for "special reasons" in

section 22 of the Rules "is high ... each decision must turn upon the particular circumstances before the Court" (see Ibrahim v. Canada (MCI) , 2007 FC 1342 , at paragraph 8 , where Madam Justice Dawson, then of this Court, cited her decision in Uppal v. Canada (MCI) , 2005 FC 1133 , at paragraph 6 : "[e]ach request for costs will turn upon the particular circumstances of the case"). 17 According to this Court's consistent jurisprudence, special reasons include "situations where one party has acted in a manner that may be characterized as unfair, oppressive, improper or actuated by bad faith.

But special reasons can also include conduct that unnecessarily or unreasonably prolongs the proceedings" (see Manivannan v. Canada (MCI) at paragraph 51). 18 Specifically, an award of costs under

section 22 of the Rules is justified to compensate for wasted costs on a stay motion that was adjourned (see Jackson v. Canada (MPSEP) , 2007 FC 56 at paragraphs 2 and 14 and the Federal Court of Appeal decision in Geza v. Canada (MCI) , [2001] F.C.J. No. 9 ) in which Madam Justice Sharlow, at paragraph 16, awarded costs against the Minister of Citizenship and Immigration where " the appellants [were] compelled to waste time and effort in commencing and defending these appeals "(Emphasis added).

In that case, the Minister had taken inconsistent positions. [Emphasis added] [ 17 ] I agree with the Applicant that because the reasons prompting his deferral request were fundamental to a risk assessment, in that they consisted of contradictory findings regarding his identity and the deprivation of his right of appeal to the RAD as a consequence of inadequate representation by counsel, and because those issues were clearly established in the objective evidence put before the Enforcement Officer even before the Applicant was issued his Direction to Report, CBSA’s delay in issuing a decision was unreasonable, and is unjustified. [ 18 ] However, I also find that the Respondent raised a legitimate argument that establishing an Applicant’s case for deferral should not be proven on a piece-meal basis and cannot be condoned by the Court.

As such, in my discretion, I award costs in the amount of $750. ORDER in IMM-3233-17 THIS COURT ORDERS that: 1. Costs are awarded to the Applicant in the amount of $750, payable forthwith. "Michael D. Manson" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-3233-17

STYLE OF CAUSE: OSMAN GABIER OSMAN SAADELDIN V MPSEP MOTION IN WRITING CONSIDERED AT OTTAWA, ONTARIO PURSUANT TO RULE 369 OF THE FEDERAL COURTS RULES ORDER AND REASONS: MANSON J. DATED: SEPTEMBER 19, 2017 WRITTEN REPRESENTATIONS BY : Shannon Black FOR THE APPLICANT Stephen Jarvis FOR THE RESPONDENT SOLICITORS OF RECORD : Shannon Black Barrister and Solicitor Toronto, Ontario FOR THE APPLICANT Attorney General of Canada Toronto, Ontario FOR THE RESPONDENT