Almonacid Espejo v. Canada (Minister of Public Safety and Emergency Preparedness), 2006 FC 1460

Date:20061205

Docket: IMM-6346-06

Citation: 2006 FC 1460

 

BETWEEN:

CARLOS MAURICIO ALMONACID ESPEJO

Applicant

and

 

THE MINISTER OF PUBLIC SAFETY AND

 EMERGENCY PREPAREDNESS

Respondent

 

 

REASONS FOR ORDER

 

ROULEAU, D.J.

 

[1]               I entertained this application for a stay of a removal order on Friday, December 1^st, 2006. The removal was to be executed on December 2, 2006. I granted the stay of the removal order and indicated that reasons would follow.

 

[2]               The applicant, a citizen of Columbia, fled his native country for the United States in December 2004, accompanied by his wife and three daughters who are presently 8, 4 and 2 years of age.

[3]               He filed an asylum claim in July 2004 in the United States which was denied one year later. Subsequently, at an appearance before an immigration judge in the State of Georgia he withdrew his asylum claim voluntarily and was ordered to leave the country by November 24, 2006. This order was issued on July 24, 2006 by the United States Immigration Court in Atlanta, Georgia.

 

[4]               Accompanied by his wife and children, the applicant travelled to Northern New York State, left his wife and children on the US side of the border and on August 16, 2006 approached Customs at Fort Erie, Ontario to obtain information about applying for refugee status. In his affidavit he swears that it was not his intention to apply for refugee status at that time. He was nevertheless processed as a refugee claimant and on the same day was found ineligible to make a refugee claim in Canada and was issued an exclusion order pursuant to subsection 100(1) of the Immigration and Refugee Protection Act. This exclusion was pursuant to paragraph 101(1)(e); the applicant came directly or indirectly to Canada from the Unites States which is a country designated by the Immigration and Refugee Protection Regulations as “a country other than your nationality or habitual residence”. The applicant could therefore not file a claim for at least six months and was prohibited from entering Canada.

 

[5]               A few months later, on November 3, 2006 he entered Canada through Manitoba accompanied by his wife and children. On November 4, 2006 he was arrested and charged with returning to Canada without consent. A deportation order was issued against him on November 6, 2006. On November 15, 2006 he was convicted on one count or returning to Canada without authorization and sentenced to time served of 12 days of custody. On November 17, 2006 he was released on a cash bond of $1,500.00.

 

[6]               The wife and children who accompanied him were eligible to make a claim and were so advised on November 21, 2006.

 

[7]               The applicant was ordered deported pursuant to the strict interpretation of paragraph 101(1)(e), as well as sections 112 and 118 of the Immigration and Refugee Protection Act.

 

[8]               It was argued before me that the applicant should have been allowed a Pre-Removal Risk Assessment application (PRRA); that the best interests of the children had not been considered; and that there was some doubt as to the legitimacy of issuing a decision under subsection 100(1) of the Immigration and Refugee Protection Act in accordance with paragraph 101(1)(e).

 

[9]               I am satisfied that there is a serious issue in this matter. There is no doubt that the interests of the children were not considered by any of the Immigration officers involved with the processing of this claim. In addition, I am not convinced that the refusal to allow him to make a refugee claim pursuant to paragraph 101(1)(e) was justified since he initially did not enter Canada to make a refugee claim but only to make enquiries in that regard. Could it be said that he even entered Canada?

 

[10]           Further, I find it almost incomprehensible that his wife and children who have an identical immigration history should be allowed to make a refugee claim while the husband would be refused.

 

[11]           It seems to me that a continued strict interpretation of the sections relied upon by Immigration officers would make it almost impossible for anyone entering Canada from a safe country to make a claim for refugee status in Canada. It seems bizarre to me that all kinds of refugees enter this country either surreptitiously or with forged or borrowed documents and are still permitted to make refugee claims and granted asylum pending a determination by the Refugee Board.

 

[12]           I am satisfied that the irreparable harm and the balance of convenience favour this applicant and it is for these reasons that I granted the stay of the removal pending the judicial review of the decision to remove this applicant.

 

 

 

“Paul U.C. Rouleau”

OTTAWA, Ontario

December 5, 2006

FEDERAL COURT

 

NAME OF COUNSEL AND SOLICITORS OF RECORD

 

 

 

DOCKET:                                                      IMM-6346-06

 

STYLE OF CAUSE:                                      CARLOS MAURICIO ALMONACID ESPEJO v. MPSEP

 

PLACE OF HEARING:                                Ottawa, Ontario (by teleconference)

 

DATE OF HEARING:                                  December 1^st, 2006

 

REASONS FOR JUDGMENT BY:             The Honourable Mr. Justice Rouleau

 

DATED:                                                         December 5, 2006

 

APPEARANCES BY:

 

Mr. Hafeez Khan

(204) 957-1717                                                                       for the Applicant

 

Mr. Omar Siddiqui

(204) 983-0340                                                                       for the Respondent

 

 

SOLICITORS OF RECORD

 

Booth Dennehy LLP

Barristers & Solicitors

387 Broadway

Winnipeg, Manitoba

R3C 0V5                                                                                 for the Applicant

 

John H. Sims, Q.C.

Deputy Attorney General of Canada                                         for the Respondent