Date: 20050602
Docket: IMM-3246-05
Citation: 2005 FC 799
Ottawa, Ontario, June 2nd, 2005
Present: The Honourable Mr. Justice Richard G. Mosley
BETWEEN:
CLETUS CHARLES
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is a request on behalf of Mr. Cletus Charles for an Order prohibiting the Respondent from removing the applicant from Canada on June 5, 2005 and allowing a deferral until after Mr. Charles' final report to his probation officer, presently scheduled for June 16, 2005. A deferral was requested of the removals officer on May 31, 2005, the day before a stay application was filed with the Court.
[2] I have considered the materials submitted and heard counsel for the parties. The test to be applied on an application for a stay of removal is the tripartite test in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A).
[3] I note that it is incumbent upon the applicant for a stay to make full disclosure of all pertinent information. The record in this case was seriously deficient, so there was little context within which to make a decision, favourable or otherwise. In particular, the applicant failed to make available either his negative Convention refugee decision or his negative Pre-removal Risk Assessment decision. There was conflicting material in Mr. Charles' application materials about whether such a decision and reasons had been received or not, while the FOSS notes indicate that the decision at least was delivered in person on May 2, 2005. The decision of the removals officer declining to defer removal was received by counsel for the applicant only on the morning of the hearing and was consequently not before the Court.
[4] There was also no persuasive evidence that Mr. Charles was required to report in person to his probation officer on June 16, 2005 or that any efforts had been made to contact the probation officer about the likely imminent removal of Mr. Charles. At best, the evidence indicated that the officer expected Mr. Charles to make a final report by telephone on the last day of his probation term. If he is unable to make such a report by reason of his prior removal, I am not satisfied that this would constitute an offence of breach of probation that would jeopardize his chances of seeking approval to return to this country at some point in the future.
[5] There was no evidence of how Mr. Charles was supporting his spouse when he was not legally entitled to work, nor evidence as to how he managed to visit with the child when there was a court order preventing contact of any kind with his spouse during the term of his probation.
[6] I am not persuaded that there is a serious issue that would justify the exercise of my equitable jurisdiction in this case.
[7] I have considered the operation of paragraph 50(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, together with section 128 of the Corrections and Conditional Release Act, S.C. 1992, c. 20. In my view, the rationale in Gordon v. Canada (Solicitor General) [1993] F.C.J. No. 832 (T.D.) and Jones v. Canada (Minister of Citizenship and Immigration) 2002 FCT 392 applies with equal force to the situation before me. I find that probation is analogous to parole and does not constitute an actual sentence or term of imprisonment. Consequently, it does not operate as a statutory stay and no serious issue arises.
[8] The removals officer's refusal to defer was not yet available when the application was filed, so it was not in evidence. However, even the complete absence of written reasons from a removals officer is not a serious issue: Boniowski v. Canada (Minister of Citizenship and Immigration) 2004 FC 1161; Mann v. Canada (Minister of Citizenship and Immigration) 2004 FC 1763.
[9] In the circumstances, I need not deal with the question of irreparable harm, though I note that even had I found a serious issue, there was little persuasive evidence of irreparable harm before me.
[10] The balance of convenience in this case favours the Respondent.
ORDER
THIS COURT ORDERS that the application for a stay of the removal of Mr. Cletus Charles is dismissed.
"Richard G. Mosley"
J.F.C.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3246-05
STYLE OF CAUSE: CLETUS CHARLES
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
HEARD BY
TELECONFERENCE: Ottawa, Ontario
DATE OF
TELECONFERENCE: Thursday, June 2, 2005
REASONS FOR ORDER
AND ORDER: The Honourable Mr. Justice Mosley
DATED: Thursday, June 2, 2005
APPEARANCES:
Mr. Munyonzwe Hamalengwa FOR THE APPLICANT
Ms. Kristina Dragaitis FOR THE RESPONDENT
SOLICITORS OF RECORD:
MR. MUNYONZWE HAMALENGWA
Barrister and Solicitor
Toronto, Ontario FOR THE APPLICANT
JOHN H. SIMS, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT
Toronto, Ontario
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