Date: 20010815
Docket: IMM-3651-01
Neutral citation:2001 FCT 896
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
CARLOS MANUEL MALICIA
Applicant
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is a motion by Carlos Manuel Malicia (applicant) for an order staying his deportation to Portugal . The removal is scheduled for August 20, 2001.
[2] The applicant came to Canada from Portugal in 1975. After he came to Canada he developed an addiction to alcohol and drugs. He also committed many criminal offences. His criminal record shows approximately 30 criminal convictions. The last criminal conviction was in August 1997.
[3] According to the applicant's evidence he has not had a drink of alcohol in 4 years and no longer uses drugs. The applicant goes to Alcoholics Anonymous and has completed a Renascent Program for alcoholics.
[4] The applicant had been ordered deported from Canada in June 1994 because of his criminal convictions. He appealed this order to the Appeal Division of the Immigration and Refugee Board and his appeal was denied. He later applied to have that appeal reopened and that motion was denied on July 12, 2001.
[5] The applicant has filed a judicial review application with respect to the July 12, 2001 decision of the Appeal Division of the Immigration and Refugee Division.
[6] The applicant also filed an application requesting consideration on humanitarian and compassionate grounds.
[7] The applicant has considerable family support in his quest to remain free from alcohol and drugs.
[8] The applicant has no family members in Portugal and he can not speak or write the Portuguese language.
[9] The applicant is steadily employed in Canada.
[10] ISSUE: should an order issue granting a stay of the removal order?
Analysis and Decision
[11] It is now accepted that a removal officer has some discretion and may in certain circumstances, stay the removal of the applicant (see Wang v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 295 (F.C.T.D.)).
[12] In order to obtain a stay, the applicant must satisfy the requirements set out in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.) at page 305:
This Court, as well as other appellate courts have adopted the test for an interim injunction enunciated by the House of Lords in American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 [Footnote 3 appended to judgment]. As stated by Kerans J.A. in the Black case supra:
The tri-partite test of Cyanamid requires, for the granting of such an order, that the applicant demonstrate, firstly, that he has raised a serious issue to be tried; secondly, that he would suffer irreparable harm if no order was granted; and thirdly that the balance of convenience considering the total situation of both parties favors the order.
The applicant must meet all 3 branches of the tri-partite test.
Serious Issue
[13] The respondent has conceded that there is a serious issue to be tried. That issue to be tried is whether the I.A.D. was correct in refusing to consider the circumstances facing the applicant if he was to be removed to Portugal. This issue is before the Supreme Court of Canada in Chieu v. Canada (Minister of Citizenship and Immigration) [1999] 1 F.C. 605 (F.C.A.). Leave was granted by the Supreme Court of Canada and judgment reserved on October 10, 2000.
Irreparable Harm
[14] The applicant submits that he will suffer irreparable harm for the following reasons:
1. The applicant would lose the support system he has in Canada which has helped him to stay away from alcohol and drugs for over 4 years. He also has not committed any criminal offences in this period. His psychologist is of the view that should he lose this support system, he is in danger of suffering a serious emotional collapse.
2. The applicant is nearly blind in one eye as he had a cornea transplant which was initially successful but he has now suffered a set back and is scheduled for surgery this fall. If he does not get this surgery he is in danger of losing sight in one eye and it is, according to the applicant, complicated surgery that he can not get in Portugal. The applicant has no medical coverage in Portugal.
I am satisfied that the evidence outlined above constitutes, for this applicant, irreparable harm should he be returned to Portugal.
Balance of Convenience
[15] The applicant is under a removal order but he is not in custody. There is no doubt that the Minister has a duty to enforce the provisions of the Immigration Act, R.S.C. 1985, C, I-2. but the applicant also has a right to have the IRB's decision reviewed and to have his H & C application considered.
[16] The applicant has not committed any offence since 1997. He does not, now, present any risk to the public. Accordingly, I am of the opinion that the balance of convenience favours the applicant.
[17] The removal (deportation) order issued against the applicant is hereby stayed until the later of the date on which the application for judicial review is finally dealt with or until his application for H & C consideration is dealt with.
ORDER
1. IT IS ORDERED that the removal order is hereby stayed until the later of the dates on which the applications for judicial review is finally dealt with or until his application for H & C consideration is dealt with.
"John A. O'Keefe"
J.F.C.C.
Toronto, Ontario
August 15, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-3651-01
STYLE OF CAUSE: CARLOS MANUEL MALICIA
Applicant
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: MONDAY, AUGUST 13, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: O'KEEFE J.
DATED: WEDNESDAY, AUGUST 15, 2001
APPEARANCES: Mr. Lorne Waldman
For the Applicant
Ms. Cheryl Mitchell
For the Respondent
SOLICITORS OF RECORD: Jackman, Waldman & Associates
Barristers & Solicitors
281 Eglinton Ave. East
Toronto, Ontario
M4P 1L3
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010815
Docket: IMM-3651-01
BETWEEN:
CARLOS MANUEL MALICIA
Applicant
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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