Date: 20010123
Docket No.: IMM-6111-00
OTTAWA, ONTARIO, THIS 23rd DAY OF JANUARY, 2001
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
ABDELE DAMIYE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant,Abdele Damiye, has brought a motion for a stay of the implementation of a removal order issued against the applicant on January 10, 2001. The grounds of the motion are that the applicant has an outstanding application for leave and judicial review; that there is a serious issue to be tried; that he would suffer irreparable harm if deported to Somalia; and that the balance of inconvenience favours him.
[2] A short summary of the facts is required in order to understand and appreciate the context of the present case. The applicant arrived in Canada in June, 1998 from the USA. He was able to process a refugee claim in Canada after having been refused entry in the USA. On March 26, 1999, the CRDD declared his claim abandoned since he did not appear at his hearing.
[3] In his PIF of June 1998, the applicant claimed to have landed in the USA in June 1992 on US Government Sponsorship, however, there is no evidence that confirms this. He also submitted that he had resident status in the USA. However, evidence established that his USA Resident Alien Status was never fully processed and that he is wanted in the State of Georgia on numerous criminal charges. Furthermore, United States Immigration and Naturalization Service officials informed Canadian Immigration authorities that the applicant was subject to deportation from the USA.
[4] On November 25, 2000, an order for deportation was issued and scheduled by Canadian authorities. However, the applicant suffered an epileptic seizure at the airport and his deportation order was not enforced.
[5] Counsel for the applicant submitted that the applicant has a pending spousal sponsorship application. However, no evidence was brought forward to establish this outstanding application. There was also no evidence that the June 24, 2000, marriage was registered by the Canadian authorities. The applicant's spouse is pregnant and is expected to give birth in March 2001.
[6] The applicant is currently detained in Withby, Ontario, facing criminal charges for Personation, Utter Forged Documents, Fraud and Obstruction of Justice.
[7] In his arguments, counsel for the applicant raised two distinct issues. Firstly, he submitted that the removal is statute barred by s. 50 of the Immigration Act, R.S.C. 1985, c. I-2 and secondly he addressed the established test for considering whether to grant a stay of proceedings which is similar to that for an interlocutory injunction.[1]
[8] I will address first the argument that the removal is statute barred by s. 50 of the Immigration Act. Section 50(1) of the Immigration Act states that:
50. (1) A removal order shall not be executed where
(a) the execution of the order would directly result in a contravention of any other order made by any judicial body or officer in Canada; or
(b) the presence in Canada of the person against whom the order was made is required in any criminal proceedings and the Minister stays the execution of the order pending the completion of those proceedings.
50. (1) La mesure de renvoi ne peut être exécutée dans les cas suivants :
a) l'exécution irait directement à l'encontre d'une autre décision rendue au Canada par une autorité judiciaire;
b) la présence au Canada de l'intéressé étant requise dans le cadre d'une procédure pénale, le ministre ordonne d'y surseoir jusqu'à la conclusion de celle-ci.
[9] Counsel for the applicant submits that given the fact that there are criminal charges pending, s. 50 of the Immigration Act prevents any deportation in such cases. A review of a recent decision of the Federal Court of Appeal is required in order to address this issue. Létourneau J.A., in Cuskic v. M.C.I. (Minister of Citizenship and Immigration) stated:
Section 48 of the Act imposes upon the Minister of Citizenship and Immigration ("Minister") a general to execute a removal order as quickly as possible by requiring that it be done as soon as reasonably practicable.
(...)
However, s. 50 outlines limited circumstances when removal orders cannot be executed. In other words, execution of a removal order is the rule, deferral of execution the exception.
(...)
More deserving of consideration, however, is the appellant's submission that the reviewing judge failed to take into account the overall purpose of the Act, especially Part III which deals extensively with the exclusion and removal of inadmissible persons. Instead the learned judge, the appellant argues, literally interpreted a specific provision such as s. 50 without giving appropriate consideration to the overall scheme created by the Act which affects the manner in which a particular or specific provision is to be interpreted. As a result, such interpretation leads to illogical conclusions as well as different results based on trivial distinctions.
(...)
In my view, the broad interpretation given to the specific exceptions found in s. 50, particularly paragraph 50(1)(a), leads to unjust and unreasonable consequences that cannot have been intended by Parliament. I believe it is appropriate, in the circumstances of this case, "where it appears that the consequences of adopting an interpretation would be absurd ... to reject it in favour of a plausible alternative that avoids the absurdity": see R. Sullivan, Driedger on Construction of Statutes, 3rd ed., 1994, Butterworths, Toronto, page 79. The plausible alternative is, in my view, that probation orders were not meant to defer the execution of a valid removal order and interfere with the Minister's duty, pursuant to s. 48 of the Act, to act diligently and expeditiously.[2]
[10] In applying theprinciples set out in the Cuskic case, I am invited to take into account the overall purpose and scheme of the Immigration Act in considering whether the exceptions in s. 50 are applicable.
[11] The Court also makes it clear in Cuskic that execution of a valid removal order is the rule, deferral of execution the exception.
[12] In the present case, we are not dealing with a probation order but rather an order requiring the applicant to appear before the Court on criminal charges.
[13] Furthermore, in the case at bar the Attorney General of Ontario has agreed to stay the pending criminal charges against the applicant in the event of a removal.
[14] It would have been desirable to have the Attorney General stay the criminal charges prior to this application for a stay of the removal order. I recognize that this is not always possible, given the nature of last minute stay applications. In the case at bar, the removal order is scheduled for Saturday January 13, the following day, rendering it impractical, if not impossible, for the Attorney General to properly stay the criminal charges before the appropriate Court. In this instance, I am prepared to accept the undertaking of the Attorney General of Ontario that the charges will be stayed upon removal of the applicant and before he is required to appear before the Court of criminal jurisdiction.
[15] I therefore find that, even on a narrow and literal reading of s. 50(1)(a), the execution of the removal order would not directly result in a contravention of any other order made by any judicial body, namely a Court of criminal jurisdiction in Ontario, since upon the removal of the applicant, the outstanding criminal charges against him will be stayed, and the order requiring his appearance before the criminal Court will become a nullity.
[16] Applying the principles in Cuskic, and the above interpretation of s. 50 of the Immigration Act, I find that the applicant cannot rely on s. 50 to prevent his removal.
[17] The second issue is based on the tripartite test established in the Toth decision. The test requires, for the granting of such an order, that the applicant demonstrate:
(1) that he has raised a serious issue to be tried in the underlying judicial review application;
(2) that he would suffer irreparable harm if the stay is not granted; and
(3) that the balance of convenience considering the total situation of both parties, favours the grant of the stay.
[18] Counsel for the applicant has filed an application for leave and for judicial review to quash the direction to report for removal and in the interim is seeking an order staying the direction to report for removal dated November, 29, 2000. In order to consider granting a stay, I must first be convinced that there is a serious issue to be tried.
[19] The applicant also submitted that there is an outstanding spousal sponsorship application, however, no evidence was brought forward to sustain it. With regards to the pending criminal charges, I have already dealt with the exception in s. 50 of the Immigration Act.
[20] For a serious issue to be established, the issue must arise out of the underlying application and an evidentiary basis must exist to support it. Here, the underlying application seeks to quash a direction to report for removal. The review of such decisions is very limited, as stated by Nadon J. in Simoes:
In my opinion, the discretion that a removal officer may exercise is very limited, and in any case, is restricted to when a removal order will be executed. In deciding when it is "reasonably practicable" for a removal order to be executed, a removal officer may consider various factors such as illness, other impediments to travelling, and pending H & C applications that were brought on a timely basis but have yet to be resolved due to backlogs in the system.[3]
[21] In the case at bar, the removal officer considered the various factors in relation to the applicant and the circumstances of his removal. Further, the said officer notably provided for medical assistance to escort the applicant on his return flight and arranged for the pending criminal charges to be stayed.
[22] Having reviewed the material before the Court and hearing counsel for the parties by telephone conference, and taking into account the Baker decision, I find that there is not a serious issue to be tried in the underlying judicial review application. Even if the removal is carried out, the outstanding application for leave and for judicial review will continue to be processed and if there is a spousal sponsorship application, it will also move forward.
[23] In addition to the lack of a serious question before the Court from the application for leave and for judicial review, I am not satisfied that the applicant has established irreparable harm, another essential requirement for a stay in applying the tripartite test. Medical assistance will be available to him during his removal in the event the applicant suffers another epileptic seizure. I also find that there is no convincing evidence to support that the applicant will suffer irreparable harm if returned to Somalia.
[24] As for the spousal sponsorship application, this Court has on many occasions established that separation in and of itself does not amount to irreparable harm.
[25] The granting of a stay is an exceptional measure as stated by Lemieux J.:
This Court does not have original equitable jurisdiction to decide, generally speaking, whether it is fair or unfair to remove someone from Canada. This Court can only intervene in defined circumstances by applying proper legal principles which, in this case, place upon the applicants the burden of meeting the tripartite test for granting stays.[4]
[26] For these reasons the stay is dismissed.
ORDER
THIS COURT ORDERS that:
1. the motion for a stay of the implementation of the removal order issued against the applicant on January 10, 2001 is dismissed.
"Edmond P. Blanchard"
Judge
[1] Toth. v. Canada (Minister of Employment and Immigration), (1988, 6 Imm. L.R. (2d) 123.
[2] Cuskic v. M.C.I. (Minister of Citizenship and Immigration), (2001) FCA, 20001005, Court File
N ° A-363-97, Létourneau J.A., at paragraphs 14 and 25.
[3] Simoes v. Canada (Minister of Citizenship and Immigration) [2000] F.C.J. No. 936 at paragraph 12.
[4] Jordan v. Canada (Minister of Citizenship and Immigration),[2000] F.C.J. No. 1076
Court File No. IMM-3316-00, at paragraph 22.
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