Docket:
IMM-7746-13
Citation: 2013 FC 1235
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa,
Ontario, December 9, 2013
PRESENT:
The Honourable Mr. Justice Shore
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BETWEEN:
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EVELIA JOSEFINA CASTEJON SANTOYO
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Applicant
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and
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MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
This case will not be heard because the
applicant does not have “clean hands”. The applicant, a Mexican citizen, filed
a motion to stay removal scheduled for December 10, 2013, to Mexico.
[2]
The applicant arrived in Canada in November 2007 and claimed refugee status. The claim was rejected by the
Immigration and Refugee Board as not credible. The application for leave filed with
respect to that decision was dismissed by this Court.
[3]
In September 2010, the pre‑removal risk
assessment [PRRA] led to a rejection of the application in this regard.
[4]
In November 2010, also, the applicant signed a
copy of the notice of her removal scheduled for December 11, 2010. The
applicant did not appear for her removal.
[5]
On November 19, 2012, Montréal police
arrested the applicant for immigration purposes after her former spouse,
Antonio Reyes Huerta, attempted to murder her.
[6]
Given that the applicant testified at the trial
of her ex‑husband, her removal was delayed.
[7]
Following a new PRRA decision in March 2013,
this Court dismissed the applicant’s application for leave in July 2013.
[8]
After the applicant had surgery and began
treatments, the applicant requested a stay of removal until the summer of 2014.
[9]
In early November 2013, Dr. Thériault of
Citizenship and Immigration Canada [CIC] was in contact with the immigration
officer following an analysis of the latest medical reports. As a result of the
intervention of the CIC’s physician, the applicant’s removal was rescheduled to
December 10, 2013, two months after the surgery.
[10]
On December 3, 2013, Dr. Thériault told the
immigration officer that he had communicated with Dr. Carbajal in Mexico and that he was ready to admit the applicant to continue treatments in a medical institution
in Mexico.
[11]
On December 3, 2013, the immigration officer
rejected the applicant’s request for a stay as a result of Dr. Thériault’s
remarks.
[12]
The Court notes that the 2010 removal date was
ignored by the applicant, who has lived in Canada clandestinely and therefore
illegally, without status, during the previous period already noted above.
[13]
The Court notes, also, that the applicant’s
misconduct in failing to report to the authorities as scheduled can lead in
itself to dismissal of the motion (see Garcia v Canada (Minister of Public
Safety and Emergency Preparedness), 2010 FC 1341).
[14]
A person who ignores a deportation and then
comes to this Court for a stay of removal, an extraordinary measure, is behaving
illegally with respect to Canadian immigration authorities.
[15]
The applicant has not had “clean hands” for a
number of years:
[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 CanLII
55 (S.C.C.), [1980] 2 S.C.R. 1011 see also Basu v. Canada, [1992] 2 F.C. 38 (F.C.T.D.))
(Manohararaj v Canada (Minister of Public Safety and Emergency Preparedness) 2006 FC 376).
[16]
Also, “those who seek equity must do equity” (Wright
v Canada (Minister of Citizenship and Immigration), 2002 FCT 113).
[17]
In addition, Canadian immigration authorities
have done everything in their power to ensure that care and medical treatments
will be available for the applicant in Mexico.
[18]
For all the above reasons, the applicant’s
motion for a stay is dismissed.
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