Date: 19980310
Docket: IMM-914-98
BETWEEN:
VALERIE PAVALAKI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED, J.:
[1] These reasons relate to the stay of a removal order. The applicant received a direction, dated January 28, 1998, instructing him to report for removal from Canada on March 14, 1998. The direction indicated that he would be returned to the Ukraine, and that he would leave on Air Ukraine flight 204, at 6:15 p.m.
[2] The applicant had married a Canadian citizen on December 18, 1997. He and his wife assert that they have co-habited since December 1996. His wife asserts that her divorce decree, from a previous marriage, had not come through until December 1997, and that is why they had not married sooner. A copy of that decree was not entered in evidence.
[3] On February 9, 1998, the applicant's wife submitted an application to sponsor her husband as a permanent resident.
[4] On February 16, 1998, counsel for the applicant wrote to the Removals Unit of Immigration Canada asking that the applicant's March 14, 1998 removal be deferred on humanitarian grounds, pending the determination of a sponsorship application that had been filed by the applicant's wife. Counsel for the applicant also enclosed two letters, one from the wife's family doctor and the other from her optometrist. The doctor expressed the opinion that if the applicant was removed from Canada, the applicant's wife would likely fall back into depression, a state she had been in at an earlier time as a result of abuse from her first husband. The optometrist stated that without corrective lens, the applicant's wife was legally blind, that her eyesight would be likely to deteriorate over time, and "[i]t would be helpful if she had someone to care for her in the event of further eye deterioration".
[5] On February 19, 1998, a member of the Removals Unit responded by telephone to counsel for the applicant's letter of February 16, 1998. Counsel for the applicant's voice mail recorded that message as being "we do not defer removals for humanitarian reasons and will not defer his [Valerie Pavalaki's] removal".
[6] On December 30, 1997, the applicant had filed an application in this Court challenging a decision of a Post Claim Determination officer. That decision was given on December 12, 1997 and it found the claimant to be eligible for membership in the Post-Determination Refugee Claimants in Canada Class (PDRCC) but that he was not at risk if returned to his country of nationality.
[7] A second application by the applicant had been filed on February 3, 1998. It sought an order quashing the January 27, 1998 direction to appear for removal, referred to above.
[8] Both those existing applications were withdrawn by his counsel on March 3, 1998. On the same date, an application for leave to commence judicial review of the February 19, 1998 telephone response was filed, as was a motion to stay the removal order of March 14, 1998. A stay of the deportation order is sought until the leave application to commence proceedings to challenge the February 19, 1998, decision is finally determined. The basis for that application is that the removals officer who made the decision of February 19, 1998, fettered her discretion. It is argued that she incorrectly thought that she did not have discretion to defer removal when in fact she did.
[9] Reliance is placed on Madame Justice Simpson's decision in Poyanipur v. Minister of Citizenship and Immigration (IMM-2879-95, decision dated November 7, 1995; reasons issued July 26, 1996). I quote from that decision:
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What is clear, however, is that removal officers have some discretion under the Immigration Act concerning, among other things, the pace of the removal once they become involved in making deportation arrangements. This is so because the May Affidavit indicates in paragraph 8 that removals are to be carried out as soon as "reasonably" practicable. This language is also found in section 48 of the Immigration Act. In my view, this language covers a broad range of circumstances which might include a consideration of whether it would be reasonable to await a pending decision on a H & C application before removal. Accordingly, the removal officer does appear to have some decision-making power which is subject to judicial review. |
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No affidavit has been filed by the removal officer. However, the applicant's affidavit indicates that the removal officer had been told that she was to deport people as quickly as possible and that she lacked any discretion. This evidence arguably raises a serious issue. It appears that the officer's discretion may have been improperly fettered by the directive she received. |
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[10] I note that Madame Justice Simpson's decision was based not only on a finding of that the removals officer had a discretion but also on the finding that if the applicant was deported to Iran, he might not be permitted to return to Canada from that country, even if his wife's sponsorship application was successful. Also, there was evidence before the Court that a decision on the humanitarian and compassionate review application would be available shortly.
[11] I turn then to consider this application for a stay under the usual headings: (1) is there a serious issue to be tried; (2) will irreparable harm result from the deportation; (3) in whose favour is the balance of convenience.
[12] The issue raised by the leave application is not a strong one. I accept that removal officers have, in certain circumstances, authority to defer execution of a removal order (certainly if an applicant was ill, or if the scheduled flight was cancelled, such must exist). In this case, however, the circumstances upon which counsel sought deferral are not ones that arose just prior to the removal date. The voice mail message he received is very cryptic in nature. Whether the interpretation counsel puts on the words used is correct (i.e. that they demonstrate a fettering of discretion) is not as obvious to me as it is to him. The reasons for which a deferral was sought were not of the type that one would expect to fall within a removal officer's jurisdiction to alter removal arrangements after those arrangements had been made. As counsel for the respondent argued they are of the type that are more properly the subject of a humanitarian and compassionate review application.
[13] In any event, the application fails because irreparable harm cannot be demonstrated. The "medical" evidence concerning the applicant's wife's conditions is speculative at best; that of the optometrist is particularly unconvincing as support for the assertion that immediate deportation will cause irreparable harm. The applicant is not being returned to a country where he suffers risk of harm, or from which he should have any difficulty returning if his wife's spousal sponsorship is successful.
[14] Also, it does not argue in the applicant's favour, when applications such as this are brought at the eleventh hour. I have to ask: why wasn't a spousal sponsorship application filed earlier even if only earlier by a matter of approximately two months? why wasn't the application now before the Court filed earlier? Counsel for the applicant said his office was too busy. Last minute applications can mean that the Court has only one side of the story before it. Such applications can deny the respondent adequate time to prepare her side of the story. I perceive this to have occurred in this case. I perceive the balance of convenience to be in the respondent's favour.
[15] For the reasons given the application for a stay will be dismissed.
"B. Reed"
Judge
Toronto, Ontario
March 10, 1998
FEDERAL COURT OF CANADA
Date: 19980310
Docket: IMM-914-98
BETWEEN:
VALERIE PAVALAKI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-914-98
STYLE OF CAUSE: VALERIE PAVALAKI
- and -
| THE MINISTER OF CITIZENSHIP |
DATE OF HEARING: MARCH 9, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: REED, J.
DATED: MARCH 10, 1998
APPEARANCES: Mr. Harvey Savage
For the Applicant
Ms. Leena Jaakkimainen
For the Respondent
SOLICITORS OF RECORD: Mr. Harvey Savage
Barrister and Solicitor
Suite 2000
393 University Avenue
Toronto, Ontario
M5G 1E6
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
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