Date: 20000517
Docket: IMM-2517-00
BETWEEN:
JULIA FERNANDEZ HERRERA
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
DUBÉ J.:
[1] This is an application for a stay of execution of the deportation order made against the applicant on the ground that she risks irreparable harm if she is returned to the United States, since there already is a valid deportation order against her in the United States, to return her to Honduras, her country of origin.
[2] The applicant alleges that she is being sought in Honduras, probably for the purpose of killing her, because she spoke out against the involvement of the Honduran authorities in her husband's detention and subsequent death under torture in 1986.
[3] The documents filed on the record by the respondent show that on August 16, 1999, the Convention Refugee Determination Division determined that the applicant was not a Convention refugee. On November 2, 1999, the post-claim determination officer, Andrew Kull, informed the applicant that her case had been reviewed in response to her application, and that he found that she was not [TRANSLATION] "exposed to any of the risks identified in the definition of member of the PDRCC class." She was notified that the departure order made against her was now in effect, that she had to leave Canada by December 9, 1999, and that if she did not comply with the order, it would automatically become a deportation order.
[4] On December 10, 1999, Madam Justice Tremblay-Lamer, of this Court, dismissed the applicant's application for leave and for judicial review of the decision by the Immigration and Refugee Board dated August 9, 1999.
[5] On May 4, 2000, the applicant was notified that her departure from Canada to the United States would take place on May 18, 2000, at 8:30 a.m. On May 9, 2000, officer Andrew Kull informed the applicant that her case had been reviewed and that her application for permanent residence for humanitarian or compassionate considerations would not be assessed before her departure from Canada because her situation was neither of the following: a person whose life would be in danger or who might be exposed to extreme sanctions or inhumane treatment; a person whose application was received more than six months previously.
[6] On the same date, officer Kull filed a risk assessment opinion concerning the applicant's fears. This document offers a serious analysis of the risks that the applicant might run were she returned to Honduras, and concludes as follows:
Finally, taking into account all treaties and conventions Canada is signature to, I must conclude that no objective, identifiable risk exists for the applicant upon her return to Honduras.
[7] This application for a stay, filed in all haste and in the late afternoon of the day before the deportation, has enabled counsel for the applicant to repeat all the arguments already advanced before the Immigration and Refugee Board, before the immigration officer and before the Federal Court (through the application for leave to commence an application for judicial review). These arguments have been dismissed at every level.
[8] Obviously, these urgent stay applications oblige counsel for the respondent to reply on the spur of the moment, do not facilitate the work of the Court and do not help justice to be done. A stay is an extraordinary remedy, which deserves careful, thoughtful judicial consideration. I believe that it is appropriate to repeat here the comments of Mr. Justice Strayer:
...In my view this is the kind of situation where, on the face of the record, the Court would be justified in refusing the extraordinary procedure of an urgent hearing. Among other reasons, such last minute applications leave counsel for the respondent little or no time to receive instructions on the facts of the situation and this must be of concern to the Court in considering whether to issue the extraordinary remedy of a stay. Applicants and their counsel should be aware that waiting until the last possible moment to make these applications must therefore detract from rather than enhance, their likelihood of success. I am attributing no such responsibility to counsel for the present applicant as he was consulted at a very late date, but I fail to understand why the applicant delayed as she did in seeking counsel and in coming to the Court.
[9] In this case, the state of the record clearly indicates that the applicant has not been deprived of her rights. Even were we to assume that she had a serious question to debate, she does not meet the other two criteria. The evidence on the record shows that she will not run any risk if she is returned to her country of origin. I can understand that she has personal fears, but the evidence on the record does not justify them. As far as the balance of convenience is concerned, it clearly favours the respondent, who has an obligation to fulfil her duties under the provisions of the Immigration Act.
[10] Consequently, this application for a stay cannot be allowed.
OTTAWA, Ontario
May 18, 2000
Judge
Certified true translation
Martine Brunet, LL.B.
Date: 20000518
Docket: IMM-2517-00
OTTAWA, ONTARIO, THE 18th DAY OF MAY 2000
PRESENT: THE HONOURABLE MR. JUSTICE J.E. DUBÉ
BETWEEN:
JULIA FERNANDEZ HERRERA
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
The application for a stay is dismissed.
Judge
Certified true translation
Martine Brunet, LL.B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE No.: IMM-2517-00
STYLE OF CAUSE: JULIA FERNANDEZ HERRERA
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: May 17, 2000
REASONS FOR ORDER OF DUBÉ J.
DATE: May 18, 2000
APPEARANCES:
Stewart Istvanffy
FOR THE APPLICANT
Daniel Latulippe
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Stewart Istvanffy
FOR THE APPLICANT
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Vaccarino v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 518, Action No. 92-T-778, at p. 2.
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