Date: 20080208
Docket: IMM-443-08
Citation: 2008 FC 172
Ottawa,
Ontario, February 8, 2008
Present:
The Honourable Mr. Justice Shore
BETWEEN:
WAGNER
SANABRIA CASTILLO
Applicant
and
MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
1. Introduction
[1]
The
applicant did not report for his removal on October
7, 2006.
An arrest warrant was issued against him on October 23, 2006. This arrest
warrant was executed on October 31, 2007, i.e. one
year later.
[2]
His
failure to report to the airport on October 7, 2006, is enough in
itself to dismiss this stay application.
[3]
No
person should able to benefit from their own wrongdoing. This is why the Court
consistently refuses to hear people who do not appear before them with clean
hands:
[2] … Moreover, as the
applicant failed to present himself to an interview with Citizenship and
Immigration Canada officials, a warrant for arrest was issued against him on July 17, 2002 and executed
almost six months later on January 14, 2003. Clearly, the applicant is not
presenting himself with clean hands before the Court …
(Mohar
v. Canada (Minister of Citizenship and Immigration), 2005 FC 952, [2005]
F.C.J. No. 1179 (QL); also, Chen v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1464, [2003] F.C.J. No. 1901
(QL), paragraph 3)
JUDICIAL PROCEEDING
[4]
This
is an application filed by the applicant who is seeking an order to stay the
enforcement of his removal from Canada to Costa Rica scheduled for
February 9, 2008. The stay application is attached to an application for leave
and for judicial review of the decision of the enforcement officer, Yee Loch
Cheung, employed by the Canada Border Services Agency, dated January 8, 2008, to carry
out the applicant’s removal.
2. Facts
[5]
The
respondent refers to the facts set out in the affidavit of Aleksandra Wojciechowski
and the exhibits in support of this affidavit as well as facts set out in the affidavit
of officer Cheung.
3. Issues
[6]
(1)
Should the Court exercise its extraordinary power so that it may hear an
applicant who did not appear before it with clean hands?
(2) Did
the applicant establish that there was a serious issue, irreparable harm and
that the balance of convenience is in his favour?
4. Analysis
(A) The applicant DOES NOT HAVE CLEAN HANDS
[7]
The
applicant did not report for his removal on October 7, 2006. An arrest
warrant was issued against him on October 23, 2006. This arrest
warrant was enforced on October 31, 2007, i.e. one
year later.
[8]
His
failure to report to the airport on October 7, 2006, is in
itself sufficient to dismiss this stay application.
[9]
No
person should able to benefit from their own wrongdoing. This is why the Court
consistently refuses to hear people who do not appear before them with clean
hands:
[2] … Moreover, as the
applicant failed to present himself to an interview with Citizenship and
Immigration Canada officials, a warrant for arrest was issued against him on
July 17, 2002 and executed almost six months later on January 14, 2003. Clearly, the
applicant is not presenting himself with clean hands before the Court…
(Mohar, supra; also Chen,
supra.)
(B) CRITERIA APPLICABLE
TO STAY APPLICATIONS
[10]
In
order to obtain a stay of the enforcement of the removal order, the applicant
must satisfy the three elements of the three-branch test set out in Toth v.
Canada (Minister of Employment and Immigration) (1988), 6 Imm.
L.R. (2d) 123 (F.C.A.). He must show that:
(a)
his application for leave and for judicial review raises a serious
issue;
(b) he
could suffer irreparable harm if the stay is not granted; and
(c) the
balance of convenience favours him based on the overall situation of
both parties.
(i) Lack
of a serious issue
[11]
In
cases where a stay would provide the relief measures sought
in the underlying application, the fact that the issue raised is not frivolous
or vexatious is not sufficient to satisfy the “serious issue” requirement. When
a stay application is filed in regard to a refusal to defer
removal, the judge seized with the application must go beyond applying the “serious
issue” test and review in-depth the underlying application (Wang v. Canada (Minister
of Citizenship and Immigration, 2001 FCT 148, [2001] F.C.J. No. 295
(QL); Padda v. Canada (Minister of Citizenship and Immigration), 2003 FC 1081,
[2003] F.C.J. No. 1353 (QL), paragraph 6; Kanagasabapathy v. Canada
(Minister of Citizenship and Immigration), 2004 FC 441, [2004] F.C.J. No. 544
(QL), paragraph 6).
[12]
In
his memorandum, the applicant contends that the removal officer failed to use his
discretionary power. Further, the applicant claims that filing a permanent
residence application based on humanitarian and compassionate considerations justifies
deferring his removal.
[13]
As
it appears from officer Cheung’s affidavit, the applicant never asked, during
the meetings on January 8 and January 22, 2008, that his removal be
deferred for any reason.
[14]
Further,
it appears from the interview notes dated January 8 that the applicant’s wife
had not experienced any complications with her pregnancy in the preceding two
months (exhibit K of the affidavit of Aleksandra Wojciechowski).
[15]
A
pending application based on humanitarian and compassionate considerations is
not in itself a sufficient ground to defer removal. (Simoes v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 936,
paragraph 12; Wang, supra, paragraph 45; Kaur v.
(Minister of Citizenship and Immigration), 2001 FCT 741, [2001]
F.C.J. No. 1082, paragraph 18.)
[16]
In
these circumstances, the applicant did not establish that the application for
leave and for judicial review that he filed in regard to the officer’s use of
discretionary power had any reasonable chance of success.
(ii) Lack
of irreparable harm
[17]
The
applicant stated that if he is removed from Canada his wife
could suffer an abortion if she is deprived of husband’s assistance, which is
inconsistent with the evidence considered in this matter.
[18]
First,
the evidence filed with the application is insufficient to establish that the
applicant, himself will suffer irreparable harm if he is removed to Costa Rica.
[19]
The
better part of the jurisprudence of this Court, states that the irreparable
harm must be personal to the applicant (Csanyi v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 758 (QL) (T.D.),
paragraph 4).
[20]
Second, the interview notes dated January 8
indicate that on that date, the applicant’s wife had not experienced any
complications in two months.
[21]
Third, the applicant
did not at any time ask that his removal be deferred based on problems related
to his wife’s pregnancy when he met with officer Cheung, either on
January 8 or 22, 2008 (see the affidavit of officer Cheung).
[22]
In Tobar
v. Canada (Minister of Citizenship and
Immigration),
2002 FCT 399; [2002] F.C.J. No. 500 (QL), Mr. Justice J. François
Lemieux determined:
[12] In this case, the evidence
went to hardship the family would suffer should he be removed. There are many
cases in this Court which hold such evidence is not satisfactory to meet the
irreparable harm test.
[23]
In Selliah
v. Canada (Minister of Citizenship and
Immigration),
2004 FCA 261, [2004] F.C.J. No. 1200 (QL), the Federal Court of
Appeal determined as follows:
[13] The removal of persons who have remained in Canada without status will always disrupt the lives that they have
succeeded in building here. This is likely to be particularly true of young
children who have no memory of the country that they left. Nonetheless, the
kinds of hardship typically occasioned by removal cannot, in my view, constitute
irreparable harm for the purpose of the Toth rule, otherwise stays would
have to be granted in most cases, provided only that there is a serious issue
to be tried ...
[24]
In this
case, there is no evidence in the record that would establish the existence of irreparable
harm if the applicant were removed to Costa Rica.
(iii) Balance
of convenience
[25]
In
the absence of a serious issue and credible evidence of torture or persecution,
the balance of convenience favours the Minister, who has an interest in seeing that
the removal order is carried out on the scheduled date (Morris v. M.C.I.,
IMM-301-97, January
24, 1997
(F.C.)).
[26]
In fact, subsection 48(2)
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, provides
that a removal order must be enforced as soon as circumstances so permit:
|
Enforceable removal order
48. (1) A removal
order is enforceable if it has come into force and is not stayed.
Effect
Effect
(2) If a removal order is
enforceable, the foreign national against whom it was made must leave Canada immediately and it must be
enforced as soon as is reasonably practicable.
|
Mesure de
renvoi
48. (1) La mesure de renvoi est
exécutoire depuis sa prise d’effet dès lors qu’elle ne fait pas l’objet d’un
sursis.
Conséquence
(2) L’étranger visé par la mesure
de renvoi exécutoire doit immédiatement quitter le territoire du Canada, la
mesure devant être appliquée dès que les circonstances le permettent.
|
5. Conclusion
[27]
For
all of these reasons, the applicant’s stay application is dismissed.
JUDGMENT
THE COURT ORDERS that the applicant’s stay application be dismissed.
“Michel M.J. Shore”
Certified
true translation
Kelley A.
Harvey, BCL, LLB
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