Date: 20010330
Docket: IMM-6420-00
Neutral reference: 2001 FCT 273
BETWEEN:
MIRELLA CUELLO DE SALCEDO
RAFAEL MONTANO CUELLO
JONATHAN MONTANO CUELLO
JAIRO MONTANO CUELLO
Plaintiffs
AND
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application by the principal plaintiff Mirella Cuello De Salcedo on behalf of herself and her three children to stay the execution of a deportation order made against the plaintiff and her children.
[2] The courts have clearly indicated the grounds on which a stay of execution may be granted. The plaintiff must show that there is a serious question, that she may suffer irreparable harm if she is deported and that the balance of convenience is in her favour.
[3] The principal plaintiff was denied refugee status twice and her application on humanitarian grounds was also rejected twice.
[4] I should also note that in the latest refugee status claim the plaintiff was found not to be credible.
[5] In July 2000 an application by the plaintiff to be treated as a member of the post-determination refugee claimants in Canada class (PDRCCC) was also denied.
SERIOUS QUESTION
[6] So far as the serious question is concerned, the courts have held many times that waiting for a decision following an application based on humanitarian grounds was not in itself a serious question that could delay a deportation order; and even if that had been the case, a final decision was made on the application on humanitarian grounds on November 24, 2000 and only the application for judicial review following that decision is still pending.
[7] The allegations that deportation would infringe the guarantees of ss. 7 and 12 of the Canadian Charter of Rights and Freedoms, as well as contravening Canada's obligations under the Geneva Convention, the Convention Against Torture, art. 23 of the International Covenant on Civil and Political Rights and several articles of the American Convention on Human Rights must be dismissed forthwith. The plaintiff did not submit a scintilla of evidence to show what risks she might run both for her health and her family's health, and in particular for the three children who may be deported with her.
[8] The question is more one of the health of Yolanda Monti, and I will return to this below.
[9] I conclude from this that the plaintiff did not show the Court that there was a serious issue to be tried.
IRREPARABLE HARM
[10] As to irreparable harm, only two paragraphs in the plaintiff's record mention this, and in these two paragraphs only one line alleges, and I quote: [TRANSLATION] "There is a very serious risk to the plaintiff's life and health if she is deported". The rest of the paragraph and the next paragraph deal strictly with the risk to Ms. Monti.
[11] It appears that the plaintiff performed the duties of ward mistress and was specifically responsible for a person suffering from cancer and other medical problems, Yolanda Monti.
[12] The plaintiff submitted several documents to corroborate the difficult situation in which Ms. Monti lives and several written affidavits indicating that the plaintiff's help was essential, otherwise Ms. Monti's life could be cut short if the plaintiff was deported.
[13] I have no doubt that the care given to Ms. Monti by the plaintiff may be of very high quality and may allow Ms. Monti both to limit her suffering and probably improve her quality of life. However, that is not the question before the Court here: a stay of execution of the deportation order cannot be based on the harm which Ms. Monti might suffer, but on convincing evidence that there is a risk to the life and health of the plaintiff herself if she returns to Venezuela.
[14] I have no evidence in the case at bar that the plaintiff or any of her three children would suffer irreparable harm if they were deported to Venezuela.
[15] It is true that anyone who is in the position of having to leave his or her home and the environment to which they have been accustomed for several years may suffer hardship. However, the plaintiff has filed several actions in the courts and all her actions have been denied to date. She must have known that this deportation order would be made at some point.
[16] The plaintiff has not satisfied the Court that she may suffer irreparable harm, either in her own person or for her three children, if she is deported to Venezuela.
BALANCE OF CONVENIENCE
[17] On this third point, it is clear that the law imposes on the defendant a duty to carry out a removal order as soon as circumstances permit. I therefore have no hesitation in concluding that the balance of convenience is in the defendant's favour.
[18] For all these reasons, the application for a stay of execution is dismissed.
OTTAWA, ONTARIO
March 30, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-6420-00
STYLE OF CAUSE: MIRELLA CUELLO DE SALCEDO et al. v. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: MAR. 26, 2001
REASONS FOR ORDER BY: BLAIS J.
DATED: MAR. 30, 2001
APPEARANCES:
STEWART ISTVANFFY FOR THE APPLICANT
DANIEL LATULIPPE FOR THE RESPONDENT
SOLICITORS OF RECORD:
STEWART ISTVANFFY FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
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