Date: 20060714
Docket: IMM-2758-06
Citation: 2006 FC 878
OTTAWA, Ontario, July 14, 2006
PRESENT: The Honourable Mr. Justice Teitelbaum
BETWEEN:
KATHLEEN
CHARLES, ZACHARRY LAVIA (AKA ZACHARRY CHARLES)
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicants Kathleen Charles and Zacharry Lavia (aka Zacharry Charles) make a
Motion for an Order that the execution of the removal order of the Applicants
scheduled to take place on June 1, 2006 be stayed until such time as the
Application for Leave and Judicial Review be disposed “and if leave is granted
until such time as both these judicial reviews are finally disposed of by this
Court”.
[2]
The
regular grounds for such a motion are given by the Applicants, “There is a
serious issue to be tried, the Applicants would suffer irreparable harm and the
balance of convenience lies in favour of staying the execution of the removal
order, until the Court has determined the Application for Leave”.
[3]
The
Applicant Kathleen Charles is the mother of Zacharry who is 12 years old. Both
Applicants are citizens of St. Vincent and the Grenadines. Kathleen
was born on May 5, 1971 in Kingston, St. Vincent. She came
to Canada in June 1994
as a visitor and has been working as a nanny. Her son Zacharry joined his
mother in Canada in December
2000.
[4]
On
November 11, 2001, Kathleen gave birth to a son, Paul Anthony, born in Toronto. At the
time Kathleen was married to Seymour Lavia. Seymour Lavia is a citizen of St. Vincent.
[5]
As
a result of physical abuse, the female Applicant left her husband in November
2003 and went to live with friends.
[6]
I
am told that Seymour Lavia was to be removed to St. Vincent on June 1, 2006.
[7]
Kathleen
Charles made a refugee claim in 2001 which was denied in 2003. She also filed
a Humanitarian and Compassionate Application (H&C) for permanent residence
which was also refused.
[8]
As
I have stated, the removal of the Applicants was scheduled to take place on
June 1, 2006.
[9]
After
hearing the Application for Stay by teleconference, I took the matter under
reserve.
[10]
I
can do no better than to quote Mr. Justice O’Reilly from the case of Maria Rita
Teineira Ramada v. The Solicitor General of Canada, Aug. 18,
2005, Docket IMM-7029-04, 2005 FC 1112 on the issue of removal of persons who
have been ordered to leave Canada.
“[3] Enforcement officers have a
limited discretion to defer the removal of persons who have been ordered to
leave Canada. Generally speaking officers
have an obligation to remove persons as soon as reasonably practicable (s.
48(2), Immigration and Refugee Protection Act, S.C. 2001, c. 27; set out
in the attached Annex). However, consistent with that duty, officers can
consider whether there are good reasons to delay removal. Valid reasons may be
related to the person’s ability to travel (e.g. illness or a lack of proper
travel documents), the need to accommodate other commitments (e.g.
school or family obligations), or compelling personal circumstances (e.g.
humanitarian and compassionate considerations). … It is clear, however, that
the mere fact that a person has an outstanding application for humanitarian and
compassionate relief is not a sufficient ground to defer removal. On the other
hand, an officer must consider whether exigent personal circumstances,
particularly those involving children, justify delay.”
[11]
In
the case of Chowdhury v. The Solicitor General of Canada, Docket
IMM-4002-05, 2006 FC 663, Mr. Justice Mosley states, at paragraph 4:
“As stated by this Court on numerous
occasions, a removals officer has only a limited degree of discretion to defer
removal: Simoes v. Canada (Minister of Citizenship and
Immigration)
(2000), 187 F.T.R. 219, 7 Imm. L.R. (3d) 141 (F.C.T.D.). If there is a valid
and enforceable removal order immediate removal should be the rule and deferral
the exception. A deferral decision ought only to be set aside if it was
patently unreasonable: Arroyo v. Canada (Minister for Public Safety and
Emergency Preparedness),
2006 FC 260.”
[12]
In
the recent case of Lai Cheong Sing v. MCI and the Minister of Public Safety and
Emergency Preparedness, 2006 FCJ No 851, 2006 FC 672, Docket IMM-2669-06, Madam
Justice Layden-Stevenson states, regarding the issue of removal of persons who
have been ordered to leave Canada:
Ҧ 1 A court order staying the
execution of an enforceable removal order is an interlocutory measure. It is
not readily granted because removal is the general rule. To obtain a stay, an
applicant must satisfy the well-established conditions articulated in the jurisprudence.
Even if successful, the relief is temporary. The stay remains in effect only
until determination of the application for leave for judicial review and (if
leave is granted) the application for judicial review.
¶ 2 Mr. Lai seeks a stay of his
removal, presently scheduled for June 2, 2006. His underlying application
relates to a negative pre-removal risk assessment (PRRA) made pursuant to the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). Mr. Lai, in accordance
with what is referred to as the tri-partite test delineated in Toth v. Canada (Minister of Employment and
Immigration)
(1988), 86 N.R. 302 (F.C.A.) (Toth), must demonstrate that:
(i)
a serious
issue exists;
(ii)
he would
suffer irreparable harm if his removal is not stayed; and
(iii)
the
balance of convenience favours staying his removal.
[13]
After
reading the written submissions of the Applicant and the Respondent and after
hearing the oral submissions of the parties, I am unable to find irreparable
harm if the Applicants are removed from Canada.
[14]
The
major allegation of irreparable harm submitted by the Applicant is fear of
spousal abuse and the fact that the Canadian born child suffers from allergies.
[15]
No
convincing evidence was submitted that the Applicant could not get protection
in St. Vincent and that the Canadian born child could not obtain treatment
for allergies in St. Vincent.
[16]
As
a result of the Applicants being unable to submit evidence of irreparable harm,
the Application for Stay must be denied.
JUDGMENT
The Application is denied.
“Max
M. Teitelbaum”
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2758-06
STYLE OF CAUSE: KATHLEEN
CHARLES, ZACHARRY LAVIA (AKA ZACHARRY CHARLES) and MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF
HEARING: OTTAWA, Ontario
DATE OF
HEARING: May
30, 2006
REASONS FOR JUDGMENT: TEITELBAUM
J.
DATED: July
14, 2006
APPEARANCES:
|
Ms. Carole
Simone Dahan
|
FOR THE APPLICANTS
|
|
Ms. Anshumala
Juyal
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Refugee Law
Office
Toronto, Ontario
|
FOR THE APPLICANTS
|
|
John H. Sims,
Q.C.
Deputy
Attorney General of Canada
|
FOR THE RESPONDENTS
|
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