Date: 20040421
Docket: IMM-3475-04
Citation: 2004 FC 591
Ottawa, Ontario, this April 21st , 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
JIMMY DEVON COURTNEY
Applicant
and
THE SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
1. Mr. Courtney has two pending applications for leave and for judicial review from decisions of a Pre-removal Risk Assessment Officer ("PRRA Officer") and a Removals Officer, filed respectively on March 29, 2004 and April 13, 2004. He has brought a motion for a stay of the execution of his removal from Canada, scheduled for April 22, 2004 at 8:30 a.m., until such time as the applications for leave and if leave is granted, the reviews, are disposed of. He also has a pending application for landing from within Canada based on humanitarian and compassionate grounds.
2. The hearing of this motion took place in Toronto on April 19, 2004. As a preliminary matter, counsel jointly moved for amendment of the pleadings in this and the underlying applications to reflect the change in Ministerial responsibility for the enforcement function and an order has been issued accordingly.
3. Mr. Courtney is a native of Grenada and entered Canada on a visitor's visa in August, 1995. He neglected to seek an extension or attempt to regularize his status until April of 2000 when he applied for permanent residence. At that time he indicated that he had strong ties to Canada because of steady employment in the landscaping industry, a sister who was a landed immigrant with four children and his own Canadian born infant child. His sister wrote a letter in support of his application.
4. Permanent residence was refused and the applicant was directed to leave the country which he failed to do. A warrant was issued in January 2001 for his arrest and it was executed in June of 2003 when he was stopped while driving a vehicle. He was released shortly thereafter on a $3000 cash bond. Mr. Courtney has no criminal record in this country and, he has attested, none in his country of origin.
5. There was some dispute in the evidence as to when Mr. Courtney brought his second application for landing on humanitarian and compassionate grounds. He attested to having submitted it in September 2003. The documentary evidence indicates that the application was dated in December 2003 and payment for the processing fees was received in March, 2004.
6. Mr. Courtney has attested that he is the sole caregiver of his son Jameson Calliste as Jameson's mother, Juliette Calliste, left the family in December 2001 and her whereabouts are unknown to him. That was disputed by the respondent who submitted an affidavit from an enforcement officer shortly before the hearing attesting to information received from the applicant's neighbour, Maritza Y. Martinez. Ms Martinez is said to have told the officer that Ms Calliste continued to live with the applicant and her son. As that information, submitted by the respondent on short notice, was contested by the applicant, I agreed to receive further affidavit evidence from the applicant.
7. The applicant has submitted affidavits from Ms. Martinez and his landlord, Vitoantonio Fierro, and his own additional affidavit, all attesting that the mother does not reside with the applicant and his son. The affidavit evidence, including that of the enforcement officer, also indicates that language difficulties may explain the different information received by the officer. On balance, I am satisfied that the mother is no longer residing with the applicant and his son and have no reason to doubt his assertion that he does not know where she is. Jameson is now five years old and in junior kindergarten.
8. The grounds relied upon by the applicant in support of his stay motion are that the enforcement officer erred in refusing to defer removal until a decision is made on the pending application for permanent residence on humanitarian and compassionate grounds, that the applicant was at risk of irreparable physical harm if removed to Grenada due to alleged threats to his life received from a person on the island, that his son Jameson would suffer irreparable harm if his father were to be removed and that the balance of convenience was in his favour as there was no pressing need for his removal.
9. The applicant also argued that there are serious issues to be tried in relation to the risk assessment conducted by the PRRA officer, notably an alleged failure to consider evidence relating to continuing violence in Grenada. With respect to the removals officer, the applicant argues that he ignored a psychologist's report indicating that the applicant was suffering from severe stress and depression related to the prospect of his removal and should have taken that into account in considering deferral. Further, the applicant asserts that he is no longer in contact with his sister and could not rely upon her to provide care for Jameson if he were to be removed.
10. There are several factors that weigh heavily against the applicant:
a. he made no attempt to regularize his status in Canada during the initial five years he was in this country;
b. he then ignored the outcome of his unsuccessful attempt at obtaining landing in 2000 until he was arrested in June, 2003;
c. the alleged threat to his personal safety was never raised until his unsuccessful PRRA application was filed late in 2003;
d. it is now over eight years since he last lived in Grenada and he submitted no objective evidence to substantiate his claim;
e. the processing of his most recent H & C application will continue despite his removal.
11. The strongest arguments in his favour are that he appears to be the sole care giver and has been attentive to the needs of his son, that he has been steadily employed, albeit illegally, and that he has not been convicted of any criminal offences while in this country.
12. As enunciated by Pelletier J., as he then was, in Wang v. Canada (Minister of Citizenship and Immigration), 2001 FCT 148, [2001] F.C.J. No. 295 (T.D.)(QL), an elevated standard applies to a stay motion arising from a refusal to defer an applicant's removal because the stay, if granted, effectively grants the relief sought in the underlying judicial review application. Accordingly, it is necessary to go further than simply applying the "serious issue" test and to closely examine the merits of the underlying application.
13. Enforcement officers executing removal orders under section 48 of Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") have a very limited discretion to defer removal. The order must be "enforced as soon as reasonably practicable" in the words of the section. There must be a lawful reason for not executing the removal order, found in the statute or in some other legal obligation sufficient in importance to relieve the Minister from compliance with section 48: Wang, supra. Justice Russell of this court recently reviewed the authorities regarding this issue in Prasad v. Canada (Minister of Citizenship and Immigration), 2003 FCT 614, [2003] F.C.J. No. 805 (T.D.)(QL) and concluded that a failure to consider compelling individual circumstances, such as personal safety or health, may constitute an unlawful fettering of the officer's discretion.
14. Those compelling individual circumstances may also require consideration of the effect of the removal on the children of the applicant: Martinez v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1695 (F.C.) (QL) and Dennis v. Canada (Minister of Citizenship and Immigration), 2004 FC 196, [2004] F.C.J. No. 223 (F.C.)(QL).
15. I have carefully reviewed the removal officer's notes. I don't accept that he ignored the pychologist's report as there is no evidence that it was sent to him with the application for deferral. However, the officer appears to have assumed that the applicant's sister would be able to care for the child upon the removal of the father without taking any steps to verify that conclusion, and in the face of the applicant's statements to the contrary. Alternatively, he assumed that the child would accompany the father to Grenada. In the circumstances I am satisfied that he may have fettered his discretion and accordingly, there is a serious issue to be tried. I am also satisfied that in the absence of a clear indication of how the child would be cared for and by whom, irreparable harm could be suffered, at least emotionally, by the applicant and his son. In the circumstances, I also conclude that the balance of convenience favours permitting the applicant to remain in the country, at least temporarily.
16. The applicant should take little comfort from the outcome of this motion. As noted above, he has shown little regard for the requirements to obtain residency in this country and the decision I have reached should not be taken as an indication that he will be successful in his applications for leave and for judicial review.
ORDER
THIS COURT ORDERS that the execution of the removal order shall be stayed pending the outcome of the underlying applications for leave and if leave is granted, until such time as the judicial reviews are disposed of.
"Richard G. Mosley"
F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3475-04
STYLE OF CAUSE: JIMMY DEVON COURTNEY v.
THE SOLICITOR GENERAL OF CANADA
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 20, 2004
REASONS FOR ORDER
AND ORDER BY : The Honourable Mr. Justice Mosley
DATED: April 21, 2004
APPEARANCES:
Stella Iriah Anaele FOR THE APPLICANT
Stephen Jarvis FOR THE RESPONDENT
SOLICITORS OF RECORD:
STELLA IRIAH ANAELE FOR THE APPLICANT
Toronto, Ontario
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario
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