Date:
20070530
Docket:
IMM-1618-07
Citation:
2007 FC 566
[ENGLISH
TRANSLATION]
Ottawa, Ontario,
May 30, 2007
PRESENT:
The Honourable Mr. Justice Shore
BETWEEN:
ABDELMALEK
MEKARBÈCHE
Applicant
and
THE
Minister of Citizenship and Immigration
AND the MINISTER OF PUBLIC
SAFETY AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
OVERVIEW
[1]
The
concept of “clean hands” is no different in law than it is in life; even if
someone says they have clean hands, the evidence obviously has hands of its own.
INTRODUCTION
[2]
The
evidence unequivocally shows that the applicant certainly does not have “clean
hands” in filing his motion for a stay before this Court. The long and onerous
immigration record submitted to the Court shows that the applicant has had a
history of not complying with the law during his two stays in Canada. The
applicant was arrested and convicted on a number of occasions for committing
criminal acts during his two stays in Canada.
[3]
The
notion of irreparable harm was defined by the Court in Kerrutt v. Canada (Minister
of Employment and Immigration), (1992) 53 F.T.R. 93, [1992] F.C.J. No. 237
(QL), as the removal of a person to a country where his or her safety or life
is in jeopardy.
[4]
In
this case, in terms of irreparable harm, the applicant alleges his medical
condition. Essentially, he alleges there is a remote possibility in the future of
serious complications that could require emergency surgery. Yet, the evidence shows
that:
•
his
medical condition has been very stable for 10 years;
•
the
anticoagulant therapy treatments are available in Algeria, there are good
cardiologists;
•
the
applicant’s medical situation does not in any way prevent him from travelling by
airplane at this time. The applicant is therefore able to travel.
According to the
various medical opinions given by the doctors of Citizenship and Immigration Canada
(CIC) and by Dr. Denis Carl Phaneuf.
JUDICIAL
PROCEEDING
[5]
This
is a motion to stay the enforcement of a removal order issued against the
applicant.
This motion is joined to an application for leave and for judicial review (ALJR)
of the decision by the removal officer, Mr. Francis Letellier, dated April 2, 2007,
setting the date for the applicant’s removal on April 27, 2007.
AMENDMENT OF THE STYLE OF CAUSE
[6]
Considering
the coming into force of the Department of Public Safety and Emergency
Preparedness Act (S.C. 2005, c. 10), the Minister of Public Safety and
Emergency Preparedness, should be designated as a respondent in this case,
along with the Minister of Citizenship and Immigration, in accordance with the
order issued on April 4, 2005 (P.C. 2005-0482).
[7]
Accordingly, the
style of cause is amended to indicate that the Minister of Public Safety and
Emergency Preparedness is a respondent, in addition to the Minister of Citizenship
and Immigration.
THE IMPUGNED DECISION IN THE APPLICATION FOR LEAVE
AND FOR JUDICIAL REVIEW (ALJR) IS NO LONGER THE CORRECT DECISION
[8]
This
motion to stay is joined to an ALJR impugning the decision of the removal
officer, Mr. Letellier, dated April 2, 2007. The removal officer decided
to set the applicant’s removal date on April 27, 2007.
[9]
On
April 19, 2007, the applicant served a first motion to stay on the respondents
and that motion is also attached to the ALJR impugning the decision of the removal
officer, Mr. Letellier, dated April 2, 2017, setting the removal date on
April 27, 2007. However, this motion was never heard by this Court because
on April 20, 2007, applicant’s counsel and respondents’ counsel informed
the Court that the removal officer had agreed to defer the removal date for one
month, so that the officer could get an update of the medical opinion that he
had obtained in January 2006 regarding the applicant’s case. This letter asked
the Court that the motion contesting the removal date of April 27, 2007, be
removed from this Court’s record because it was moot. (See the letter dated
April 20, 2007, in this Court’s record and/or exhibit P-9 of Mr. Luc Saulnier’s
affidavit.)
[10]
After
Mr. Letellier received the opinion of CIC’s Dr. Walter Waddel dated April 23,
2007, which confirmed the medical opinions received in 2002 and 2006, the
removal officer, Mr. Letellier, set the applicant’s removal date on May 31,
2007.
[11]
It
is that decision that is impugned by the applicant in this motion to stay.
[12]
Therefore,
the applicant should have filed a new notice of application for leave or at
least have asked this Court to amend his notice of application so that the
impugned decision is the one dated April 23, 2007, and not the one dated April
2, 2017.
FACTS
[13]
The
Court carefully reviewed the affidavit of Mr. Saulnier, removal officer, which
contained a detailed history of the facts and numerous proceedings appearing in
the applicant’s immigration record involving his two stays in Canada.
[14]
It
is clear from the immigration record that the applicant, during his two
stays in Canada, filed and exhausted all of the recourse that was available to
him under the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA)
to not be removed from Canada.
[15]
Also,
it is clear from the record that the applicant has a long and onerous
immigration history. He was even removed to Algeria, under escort, in May
1994. About one year later, i.e., in July 1995, the applicant came
back to Canada, after having stayed in several countries, to once again claim
refugee status in Canada, which was refused to him a second time.
[16]
The
evidence unequivocally shows that the applicant certainly does not have “clean
hands” in filing his motion before this Court. The applicant’s long and onerous
immigration record, submitted to the Court, shows:
That he has a history of not
complying with the law in the course of his last two stays in Canada
•
On
March 21, 1991, the applicant did not show up for his hearing bearing on
report 27. On June 10, 1991, an arrest warrant was issued against the applicant.
On June 26, 1991, the applicant was arrested by Immigration Canada and was
released on parole, with conditions imposed.
•
On
January 13, 1992, the applicant did not show up for his departure arrangements
and he did not leave before his time limit expired. The departure notice became
a deportation order;
•
On
January 16, 1992, a national arrest warrant was issued in the applicant’s
name;
•
On
May 12, 1994, the applicant was stopped by SPCUM officers for possession of
narcotics. He was arrested by immigration authorities and he was detained
for removal;
•
On
May 31, 1994, the applicant was deported from Canada to Algeria under
escort;
•
On
September 15, 1995, the applicant came back to Canada despite his deportation
in May 1994;
•
A
report was prepared under section 20 of the Immigration Act and an
exclusion order was issued against him, which the applicant refused to sign.
The applicant was therefore arrested and detained;
•
On
October 4, 2000, a report was prepared in accordance with subsection 27(2) of
the IRPA on the grounds that the applicant had worked without a valid work
permit;
•
The
applicant was called to an interview to make departure arrangements for February
16, 2006. He did not show up for his appointment;
•
March
16, 2006, an arrest warrant was issued for the applicant for failing to
appear for his departure arrangements;
•
On
December 11, 2006, the arrest warrant was enforced.
That he was arrested and/or convicted
on several occasions for having committed criminal acts during his two stays in
Canada
•
On
January 9, 1990, the applicant was found guilty of theft, of conspiracy with
a minor to commit theft;
•
On
May 12, 1994, the applicant was stopped by SPCUM officers for possession of
narcotics. He was arrested by immigration authorities and he was detained
for removal;
•
On
June 26, 1996, the applicant was found guilty of theft and possession of
break-in instruments;
•
On
January 14, 1999, the applicant was found guilty of possession of break-in
instruments and for failing to comply with an order;
•
On
December 11, 2006, the applicant was stopped by SPVM officers while he
was urinating in an alley.
[17]
The
applicant therefore certainly does not have “clean hands” by appearing before
this Court. For that reason alone, this motion should be dismissed. On this
point, the respondents refer this Court to a recent decision in Manohararaj v.
Canada (Minister of Public Safety and Emergency Preparedness, 2006 FC 376,
[2006] F.C.J. No. 495 (QL)
Preliminary considerations prior
to the tri-partite test
[13] It is important to note that the Applicants
chose to disobey a valid deportation order, and a warrant was issued for their
arrest. The Applicants were represented by counsel at the time. The
Applicants did not approach this Court for relief until after their arrest.
[14] This Court has held that the equitable
remedy of a stay can be denied to those who do not come to the Court with clean
hands, including those who deliberately choose to disobey deportation orders. (Araujo
v. Canada (Minister of Citizenship and Immigration), (27 August 1997),
IMM-3660-97 (F.C.T.D.) Ilyas v. Canada (Minister of Citizenship and
Immigration) (1 December 2000), IMM-6126-00 (F.C.T.D.)).
[15] In the case at bar, the Applicants have
ignored a validly issued removal order. As such, they have purposely violated
Canada’s immigration laws and have undermined the integrity of the system.
The Respondent submits that this reason alone justifies the dismissal of his
application. (Homex Reality and Development Co. v. Wyoming (Village),
[1980] 2 S.C.R. 1011 see also Basu v. Canada, [1992] 2 F.C. 38
(F.C.T.D.)).
(Emphasis added.)
ANALYSIS
CONDITIONS
FOR A STAY
[18]
To
obtain a judicial stay of a removal order, the applicant must prove three
things:
The tri-partite test of Cyanamid requires, for the
granting of such an order, that the applicant demonstrate, firstly, that he has
raised a serious issue to be tried; secondly that he would suffer
irreparable harm if no order was granted; and thirdly that the balance
of convenience considering the total situation of both parties, favours the
order. (Emphasis added.)
(Toth v. Canada (Minister of
Employment and Immigration), (1988), 86 N.R. 302 (F.C.A.), [1988] F.C.J.
No. 587 (QL).)
[19]
The
three requirements must be met for this Court to grant the
requested stay. If even one is not met, this Court cannot grant the
requested stay. The applicant does not satisfy the test established in Toth
(supra). (See also Wang v. Canada (Minister of Citizenship and
Immigration), 2001 FCT 148, [2001] F.C.J. No. 295 (QL).)
ABSENCE
OF A SERIOUS ISSUE
[20]
The
applicant has not shown that there is a serious issue that would invalidate the
removal officer’s decision to refuse to further defer his removal from Canada
and to maintain the date set for his removal on May 31, 2007.
[21]
Relying
on the opinion of Dr. Phaneuf, a cardiologist who practices only in Canada,
and who admits that he does not have any knowledge of the health care available
in Algeria, the applicant is essentially asking this Court to defer his
removal from Canada indefinitely even though he does not have valid
status, and despite his heavy criminal history in the time that he has been in Canada.
[22]
According
to the allegations of the applicant and his doctor, he is asking this Court to
stay his removal until the same quality care that he has received since he has
been in Canada is available in in his country of origin, Algeria.
[23]
Yet,
that is not the question that the removal officer had to ask before setting the
applicant’s removal date, and it is also not the test applied by this Court in
the context of this motion.
[24]
In
fact, whether or not the health care available in Algeria is identical, or as
good as, the health care available in Canada is not a basis for the applicant not
to be removed to his country.
[25]
The
question before the removal officer in exercising his very limited discretion, in
accordance with subsection 48(2) of the IRPA is: is the removal order issued
against the applicant valid and do the circumstances allow him to set a removal
date?
[26]
That
was exactly what was done by the officer in this case. To do so, he considered
the applicant’s entire immigration record and the allegations and evidence
submitted by the applicant regarding his current medical condition. He
considered and based his decision on the medical opinions in the record, dating
from 2002, by various CIC doctors with knowledge of the health care available
in Algeria, and who reviewed the care required by the applicant in view of his medical
condition:
- Opinion of
Dr. Michel Lapointe, CIC doctor, dated June 20, 2002 (exhibit P-4 of Luc
Saulnier’s affidavit);
- Opinion of Dr.
Valérie Hindel, CIC doctor, dated January 9, 2006 (exhibit P-4 of Luc
Saulnier’s affidavit);
- Two opinions
of Dr. Walter Waddell, CIC doctor, dated April 25, 2007, and May 22, 2007
2002 (exhibits P-10 and P-11 of Luc Saulnier’s affidavit).
[27]
The
removal officers that were in charge of the applicant’s file, over the years, ensured
that they obtained medical opinions from qualified doctors before determining
whether the date for the removal should be set. They even gave a number of
opportunities to the applicant so that he could properly plan his departure,
because of his medical condition, which has been, according to the applicant
and his doctor, stable for 10 years now.
[28]
Even
if the applicant and his doctor, Dr. Phaneuf, do not seem to agree with the opinions
of the CIC’s doctors, they do not show that the opinions of the CIC
doctors are without merit. They do not show, either, that the applicant is
unable to travel at this time. To the contrary, Dr. Phaneuf confirms that
the applicant’s medical condition has been stable and under control for 10 years.
[29]
In
Holubova v. Canada (Minister of Citizenship and Immigration), 2004 FC 527,
[2004] F.C.J. No. 655 (QL), the applicant had provided medical opinions in
order to impugn the medical opinions given by CIC’s doctors. Dr. Phelan stated
as follows:
[13] On the basis of the medical advice and other
information, the Officer concluded that there were insufficient grounds for the
exercise of her limited discretion to defer.
[14] The Applicant then forwarded another two medical
opinions, one from the doctor who provided the first report and a second
opinion from a new doctor. The Officer agreed to reconsider her decision and
forwarded these reports to the Medical Services Branch.
[15] This latest medical evidence advised that the
Applicant’s therapy should not be discontinued and that she was awaiting
investigation for a possible heart condition. There is a paucity of detail
about this latest possible medical condition.
...
[20] The record is also devoid of any evidence that
medical treatment, particularly the therapy for her physical injuries, is not
available in the Czech Republic. Similarly, the record is bereft of clear
evidence that the Applicant cannot endure eight hours of flight from Canada to
the Czech Republic.
[21] In considering a stay of a removal order, regard
must be had to the scope of the decision the Officer could make, as well as the
nature of this proceeding. The deferral request and this stay is not the
forum for duelling medical opinions, rebuttal, reply, sur-rebuttal and
sur-reply.
(Emphasis
added.)
[30]
Moreover,
Dr. Phaneuf states in his letter that, [translation]
“even with the most stringent medical follow-up, complications could arise for
the applicant at any time because of the prosthetic valve that he has worn
since 1996” (see Dr. Phaneuf’s letter dated May 15, 2007).
[31]
Therefore,
regardless of where the applicant is, whether in Algeria, where a basic coagulation
follow-up is available, or in Quebec, with the medical follow-up that he has
benefitted from for years, Dr. Phaneuf states that there the applicant will
always have a risk of complications. Dr. Phaneuf calculated the risk of fatal
complications at 0.2 % per year, and between 1% and 2% per year for what he
describes as serious non-fatal complications (see Dr. Phaneuf’s letter dated
May 15, 2007).
[32]
With
respect, but contrary to Dr. Phaneuf’s opinion, neither the CIC’s doctor nor the
respondents can qualify this as “[translation]
a significant risk for the applicant if he were to return to Algeria”. The respondents
point out that Dr. Phaneuf states that the complications that he refers to
in his letter could happen anywhere at any time. Further, Dr. Phaneuf refers to
a percentage of 0.2%, 1/5 of 1% of whom are patients who are at risk of
fatal complications per year. This is not a risk that we can qualify as “significant”
as alleged by the applicant and his doctor.
[33]
The
applicant’s medical condition may seem very sympathetic but his life would
not be in danger if he were to return to his country of origin, since care is
available to him over there and he is able to travel. This is based on several
medical opinions made in 2002, 2006, and 2007, by qualified doctors who are
aware of the kind of care that is available in Algeria.
[34]
Dr.
Phaneuf’s opinion and the weak statistics that he relies on cannot counter the opinions
of the qualified CIC doctors who all found that there was nothing to prevent
the applicant’s removal, and/or to justify another deferral of his removal from
Canada.
[35]
The
applicant is trying to ask this Court to grant him status in Canada based on his
medical condition, which is not contemplated under the Act.
[36]
To
the contrary, subparagraph 97(a)( iv) specifically provides that:
|
(iv)
the risk is not caused by the inability of that country to provide adequate
health or medical care.
|
(iv)
la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins
médicaux ou de santé adéquats.
|
[37]
In
this case, the applicant could certainly not obtain the status of a person in
need of protection based on his medical condition since:
•
first,
he has already exhausted all of his recourse since he arrived in Canada
(two IRB claims, ALJR dismissed by the Federal Court, PRRA application and HC
application), and all of these decisions were negative.
•
second,
his medical condition could not be considered in his two refugee
claims, or in the PRRA application (the officer that made the PRRA decision
indeed noted subparagraph 97(a)( iv) in his reasons - See exhibit P-2 of
Luc Saulnier’s affidavit).
(See:
Covarrubias v. Canada (Minister of Citizenship and Immigration), 2006 FCA
365, [2006] F.C.J. No. 1682 (QL.)
[38]
The
only way that the applicant could possibly have obtained legal
and valid status in Canada, by alleging his medical condition, would have been
through an application for exemption based on humanitarian and compassionate
considerations. He filed one in which he in fact alleged his medical
condition. His application for exemption based on humanitarian and
compassionate considerations (CH) was denied and the applicant did not file any
ALJR before the Court to dispute that decision rendered in November 2005.
[39]
The
officer who reviewed the HC application filed by the applicant, also
specifically examined the applicant’s allegation regarding his medical
condition and the health care available in Algeria. This is her finding:
[translation]
Current medical condition
The applicant claims that he is hemophiliac and that
he is followed closely for anticoagulant therapy treatments (i.e., Coumadin) following
a valve replacement in 1996. Letters from various doctors in Canada attest to
the applicant’s health problems. However, I note that the last report sent to
us is dated June 2002. The applicant has not filed any evidence to the effect
that he cannot be treated in Algeria for the alleged problems. I note that
during the interview on May 10, 2005, the applicant stated that his situation
has been stable since 2002.
Yet, according to the information that I consulted, treatment
and medication (i.e. anticoagulants) are in fact available in Algeria. An
article published in April 2005 indicates that there is a hemophilia centre in Algiers
as well as a coagulation laboratory … in the blood transfusion centre of the
university clinic. There is whole blood, plasma, and to a certain degree frozen
cryoprecipitate available at the blood transfusion centre. Also the Association
Algerianne des Hémophiles is in Algiers. The association’s website is
available at the following link and informs Algerians on the procedures to
follow http://membres.lycos.fr/algeriehemophile. The applicant did
not file evidence to the contrary that the State would not be able to provide
him with adequate care. The Faculty of Medicine at Algiers University published
an in-depth study on cardiovascular diseases. I consider that this study shows
the country’s willingness to research to develop new strategies for the health
care system.
(See exhibit P-1 of Luc Saulnier’s affidavit.)
[40] The removal
officer did not have the authority to defer the applicant’s removal indefinitely
based on his current medical condition, as he requested. If he had done
so, he would have made an error reviewable by this Court.
[41]
The
removal officers have discretion that is limited to deferring the removal based
on special circumstances.
[18] The
validity of the removal order is not in doubt.
[19] 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. (Simoes v. Canada (Minister of Citizenship and Immigration) (2000),
187 F.T.R. 219, 7 Imm. L.R. (3d) 141; Paterson v. Canada (Minister of
Citizenship and Immigration) (2000), 4 Imm. L.R. (3d) 65 (F.C.T.D.); Jmakina
v. Canada (Minister of Citizenship and Immigration) (1999), 3 Imm.
L.R. (3d) 198 (F.C.T.D.); Poyanipur v. Canada (Minister of Citizenship and
Immigration), [1995] 116 F.T.R. 4 (F.C.T.D.); Wang, above;
Pavalaki v. Canada (Minister of Citizenship and Immigration), (10 March
1998), IMM-914-98 (F.C.T.D.), [1998] F.C.J. No. 338 (QL); Olcese v. Canada (Minister
of Citizenship and Immigration) (15 April 2002), IMM-1650-02 (F.C.T.D.)
(Manohararaj, supra.)
[42] With respect to the present case, I note that the
applicant had every opportunity to present her concerns at the H & C
application stage. Nevertheless, the removal officer did read the materials
contained in the submissions of the applicant’s counsel, including Dr. Tan’s
e-mail and article, and was fully cognizant of the fact that someone who
suffers from renal failure would die if not treated. That being said, the
substance of those allegations were already considered by the H & C officer
and it was previously determined the applicant could access treatment.
Therefore, the removal officer relied, among other things, on the findings of
the H & C officer, which she was allowed to do (Harry v. Canada
(Minister of Citizenship and Immigration) (2000), 195 F.T.R. 221 (T.D.); Keppel
v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1532
at para. 10 (T.D.) (QL)).
[43] The applicant also contends that her third
application for H & C contains “new” information which was not previously
considered. The “new information” referred to by counsel does not speak in my
view to the applicant’s personal situation but rather explains the general
conditions of treatment in the Philippines for the average Filipino. This
information could have been submitted many months before. Moreover, it was
reasonably opened to the officer to question who Dr. Tan was as the e-mail was
cut off and there was no mention as to his qualification as an expert in this
area. That being said, besides the fact that Dr. Tan’s e-mail postdate the
second H & C decision, there is nothing really new brought by this letter.
On the contrary, it corroborates the determinations previously made in 1998 and
2002 that the applicant can receive proper treatments for her renal condition
in the Philippines.
...
[45] I also find that the removal officer did not act
contrary to law. It is important to take note that the applicant does not
challenge the removal order against her, but the “decision” of Shari Fidlin,
removal officer, refusing to defer her removal from Canada. The removal officer
clearly had the power under the Act to refuse to defer the removal. Section 48
of the Act provides the following: “Subject to sections 49 and 50, a removal
order shall be executed as soon as reasonably practicable”. Sections 49 and 50
deal with statutory stays of execution in certain defined circumstances; for
instance, where an applicant has filed an appeal which has yet to be heard and
disposed of, or where there are other proceedings. None of those conditions are
present here and therefore the latter sections do not apply.
[46] Here, the applicant was not asking the
removal officer to reschedule the departure for a few days or weeks in
order to permit her to make proper arrangements in Canada and in the
Philippines in terms of bringing or securing access to the needed supplies and
medications. In this regard, the evidence reveals that the applicant was
able in 1997 to travel to the Philippines and stayed there for a whole month
without experiencing any medical difficulties. Here, the applicant wanted the
removal order to be stayed pending the determination of her third H & C
application.
(Emphasis added.)
(Adviento v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1430, [2003] F.C.J. No. 1837
(QL); See also Prasad v. Canada (Minister of Citizenship and
Immigration), 2003 FCT 614, [2003] F.C.J. No. 805 (QL); Benitez v. Canada
(Minister of Citizenship and Immigration), 2001 FCT 1307, [2001] F.C.J. No.
1802 (QL).)
[42]
In
this case, the evidence in the record clearly shows that the removal officer already
exercised his discretion to defer the removal that was initially
scheduled for April 27, 2007. On April 20, 2007, officer Letellier agreed to
defer the removal for the sole purpose of updating the opinions given in 2002
and 2006. The letter dated April 20, 2007, addressed to this Court, was
signed by applicant’s counsel, and it is very clear on that point.
[43]
Therefore,
the applicant’s allegations (contained in his affidavit and memorandum filed in
support of his ALJR - see pp. 9 and 28 of the AR) to the effect that the officer
should have agreed to defer his removal in light of the serious health risks
given that he is unable to travel in such a condition and that it is impossible
to obtain the necessary medical care in his country of origin, are erroneous.
[44]
On
April 23, 2007, Dr. Waddell, after he reviewed the applicant’s medical record and
after consultation and verification, confirmed the medical opinions given by CIC’s
doctors in 2002 and 2006 (See exhibit P-10 of Luc Saulnier’s affidavit).
[45]
Therefore,
the removal officer correctly used his limited discretion. However, after
considering all of the applicant’s record, the reasons in support of his
deferral request, and the various medical opinions obtained, it was entirely
reasonable that the removal officer refused to defer the applicant’s removal
once again.
[46]
For
all of these reasons, there is no serious issue to be tried.
ABSENCE
OF IRREPARABLE HARM
[47]
The
notion of irreparable harm was defined by the Court in Kerrutt, (supra),
as the removal of a person to a country where his or her safety or life is
in jeopardy.
[48]
In
this case, as irreparable harm, the applicant alleges his medical condition. Essentially,
he alleges that there is a remote possibility in the future of serious
complications that could require emergency surgery. Yet, the evidence shows
that
- his medical
condition has been very stable for 10 years;
- the anticoagulant
therapy treatments are available in Algeria, there are good cardiologists;
- the
applicant’s medical situation does not in any way prevent him from
travelling by airplane at this time. The applicant is therefore able to
travel.
According to the
various medical opinions of CIC’s doctors and by Dr. Phaneuf.
[49]
As
previously stated, the evidence in the record shows that the applicant managed
to remain in Canada unlawfully by defying the Act and by
committing a number of criminal acts, which brought the application
of the “clean hands” principle into play.
[50]
Therefore,
the applicant can certainly not insist on remaining in Canada for even longer
when he has exhausted all of his recourse, based solely on a
remote possibility in the future that one day he may need surgery that
would not be available as quickly as it would be in Canada.
[51]
The
Court considers a very relevant decision on the application of the clean hands
principle and medical harm:
[translation]
WHEREAS the applicant avoided the deportation orders
on several occasions, and has had a history of not complying with the law during
the course of his life in Canada and he did not have clean hands when he
appeared before the Court.
WHEREAS the applicant alleges that he must remain in
Canada to deal with his health problems;
WHEREAS the preponderance of the evidence in the
record indicates that the applicant’s situation does not prevent him from
travelling and that Morocco has the infrastructures necessary to treat the
applicant, and that the medications prescribed to the applicant are available
in Morocco.”
(Chouaiby v. Canada, (Minister
of Citizenship and Immigration ), IMM-4434-06, August 17, 2006.)
[52]
Another
recent decision addresses a medical condition as irreparable harm:
[8] There is no specific evidence on
the level of medical treatment required for the daughter, and there is no
conclusive evidence that treatment for the daughter’s condition will not be
available in Iran. There is evidence of health care for the daughter in Iran. The
Applicant’s assertion[s] are speculative on this issue. Similarly, there is no
evidence that the Applicant would face extreme punishment if he returned to
Iran. A risk officer did consider the relevant documentary evidence and
determined that the Applicant would not be at risk in Iran for making a refugee
claim in Canada or for any other basis that he claimed. Evidence of irreparable
harm must not be speculative.
(Shafigh v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 324, [2001] F.C.J. No.
560 (QL).)
BALANCE
OF CONVIENIECE
[53]
Given
that the applicant did not establish a serious issue or one of irreparable harm,
the balance of convenience favours the respondents’ enforcement of the removal order
(Morris v. Canada (Minister of Citizenship and Immigration), IMM-301-97,
24 January 1997.)
[54]
Subsection
48(2) of the IRPA states that a removal must be enforced as soon as
possible. This situation prevails in this case and the applicant must leave Canada.
[55]
As
previously stated, the fact that the applicant has committed a number of
criminal acts since he has been in Canada, that on several occasions he has avoided
the application of the Immigration Act and the IRPA and that he was the
subject of several arrest warrants, are such that he does not have clean
hands before this Court. On this point, this is what the Court has
already stated:
AND UPON determining that the Applicant, who is here
seeking equitable relief, does not come before the Court with “clean hands”, in
that she has admitted to operating under at least two identities in Canada, was
arrested on a number of occasions, has breached the terms and conditions of her
release orders, and has displayed disregard of the law of Canada by using
alias. She was also admitted to Canada on September 26, 1999 for the sole
purpose of testifying in a court proceeding relating to the assault charges
against her common law spouse in Canada, yet she did not appear in Court, thereby
undermining her credibility.
(Sook Morris v. Canada (Minister
of Citizenship and Immigration), IMM-2186-06, May 18, 2006; see also Patel
v.
Canada (Minister of Citizenship and Immigration and (Minister
of Public Safety and Emergency Preparedness), IMM-3442-06,
June 28, 2006; Manohararaj, supra; Vernege
v. Canada (Minister of Public Safety and Emergency Preparedness),
IMM-4346-05, July 16, 2005.)
[56]
The
Court refers to the application of the “clean hands” principle in another
recent decision where an applicant hid to escape the Canadian immigration authorities:
Khan v. Canada (Minister of Citizenship and Immigration and (Minister
of Public Safety and Emergency Preparedness), IMM-562-07,
February 9, 2007.)
[57]
Finally,
this Court notes a decision of the Federal Court that elaborated on the balance
of convenience issue with respect to stays and public interest that must be considered:
(iii) Balance
of convenience
[21] Counsel
says that since the appellants have no criminal record, are not security
concerns, and are financially established and socially integrated in Canada,
the balance of convenience favours maintaining the status quo until their
appeal is decided.
[22] I do not
agree. They have had three negative administrative decisions, which have
all been upheld by the Federal Court. It is nearly four years since they first
arrived here. In my view, the balance of convenience does not favour
delaying further the discharge of either their duty, as persons subject to an
enforceable removal order, to leave Canada immediately, or the Minister’s duty
to remove them as soon as reasonably practicable: IRPA, subsection 48(2). This
is not simply a question of administrative convenience, but implicates the
integrity and fairness of, and public confidence in, Canada’s system of
immigration control.
(Emphasis added.)
(Selliah v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 261 (F.C.A.), [2004] F.C.J. No. 1200
(QL); see also Atwal v. Canada (Minister of Citizenship and Immigration),
2004 FCA 427, [2004] F.C.J. No. 2118 (QL); Dasilao v. Canada (Solicitor
General), 2004 FC 1168, [2004] F.C.J. No. 1410 (QL).)
[58]
In
this case, the balance of convenience is in favour of the respondents.
CONCLUSION
[59]
For all of the foregoing reasons,
the Court finds that this motion to stay is dismissed.
ORDER
THE COUR ORDERS that
the
motion to stay be dismissed.
“Michel
M.J. Shore”
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