Merino v. Canada (Minister of Citizenship and Immigration), 2003 FCT 581

Date: 20030509

Docket: IMM-3277-03

Neutral citation: 2003 FCT 581

BETWEEN:

                                             FLOR DE MARIA CANAS MERINO and

                                               MANUEL ENRIQUE BENITEZ CANAS

                                                                                                                                                       Applicants

                                                                              - and -

                                THE MINISTER OF CITIZENSHIP & IMMIGRATION

                                                                                                                                                     Respondent

                                               REASONS FOR ORDER AND ORDER

TEITELBAUM, J.:

[1]                 On the 8^th day of May, 2003, the Applicants, Flor de Maria Canas Merino and her minor son Manuel Enrique Benitez Canas made an application for an emergency hearing for a stay of Deportation/Departure which was scheduled for the early morning of May 9, 2003.

[2]                 The Applicants have filed, on May 5, 2003, an Application for Leave and judicial Review of a decision of an Immigration Officer, (Badge No. 2073, the "Risk Assessment Officer") dated the 9^th day of April, 2003.

[3]                 The emergency hearing took place, by teleconference call, on the 8^th day of May, 2003 in the late evening.

[4]                 In addition to the Application for Stay of the "Deportation/Departure Order", the Applicants who, on May 8, 2003, were in custody asked for an Order releasing the Applicants from custody, pending judicial review. The Applicants, as well, ask that the Court grant the Application for Leave and Judicial Review "of the Respondent's rejection on the Applicants' Pre-Removal Risk Assessment".

[5]                 Immediately after the hearing, I denied the Application to Stay the removal of the Applicants.

[6]                 It is now trite law that in order to have the Court grant an Application to Stay, the Applicants must show that the Applicants have an arguable case, will suffer irreparable harm and that the balance of convenience is in the Applicants' favour.

[7]                 This evidence should be made before the Court in the form of Affidavits sworn to by persons with knowledge of the facts.

[8]                 In the case before me, counsel for the Applicants failed to file any affidavit evidence, saying that is was impossible for him to see the Applicants as they were in custody. Counsel did state that for an application that was heard before Madam Justice Layden-Stevenson on May 7, 2003 for a Stay of Deportation, which was dismissed, an Affidavit was filed and that I should accept that Affidavit as evidence.

[9]                 Even if I were prepared to accept that Affidavit for the application before me, which I am not, I would state that the Applicants have failed to show that they would suffer irreparable harm as there is no evidence in the Affidavit of the Applicant dated May 5, 2003, to indicate what, if any, irreparable harm would come to the Applicants.

[10]            Therefore the Application for Stay is denied.

[11]            I would like to comment on a statement made by the Applicants' council in his letter to the Court dated May 8, 2003.

[12]            On page 2 of the said letter, counsel states:

We provide the Honourable Court with the following information:

1.             When the Applicants are to be deported:

The Applicants have been demanded to leave Canada at approximately 7:00 a.m. on 9^th May 2003

2.             Received Notice to Leave Canada:

The Applicants' solicitors received a faxed letter from Tammy McKnight, an Immigration Officer, confirming the removal date of 9^th May 2003.

3.             Country to which the Applicant is to be deported:

El Salvador.

4.             Dates when the parties wish the application to be heard:

Approximately 6:00 p.m. Calgary time on 8^th May 2003.

5.             Place of hearing:

by teleconference

6.             Length of hearing

Approximately 30 minutes

7.             Language for the Applicants:

Spanish interpreter is required.

[13]            As can be seen, under No. 3, counsel states that the Applicants are to be "deported" to El Salvador. One of the documents attached to the letter sent to the Court by the Applicants' counsel is a Facsimile Transmittal sent to counsel by Citizenship and Immigration Canada which clearly states that the Applicants are to be "removing both of them to the United States to effect their removal from Canada".

[14]            The Court does not appreciate being misled as to which country the Applicants were to be removed to. I would like to believe that what counsel meant was that the Applicants would be deported to El Salvador by the U. S. Government but this was not said.

[15]            I believe counsel should be more careful in the future.

                                                                                "Max M. Teitelbaum"

                                                                                                   J. F. C. C.      

Calgary, Alberta

May 9, 2003

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   IMM-3277-03

STYLE OF CAUSE: FLOR DE MARIA CANAS MERINO

AND MANUEL ENRIQUE BENITEZ CANAS

v. MCI                          

PLACE OF HEARING:                                   CALGARY, Alberta

DATE OF HEARING:                                     Thursday, May 8, 2003

REASONS FOR ORDER AND ORDER : TEITELBAUM, J.

DATED:                      May 9, 2003

APPEARANCES:

Mr. Austin Q. Nguyen                                        FOR APPLICANT

Mr. W. Brad Hardstaff                                                     FOR RESPONDENT

SOLICITORS OF RECORD:

AG Law Offices

Calgary, Alberta                                                   FOR APPLICANT

Morris A. Rosenberg

Deputy Attorney General of Canada                   FOR RESPONDENT