



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 partys 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 courts 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 courts decision in
Peiroo v. Minister of Employment and Immigration
(1989)
,
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 partys 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 courts decision in the appellants
    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 courts 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.


