Date: 20000614
Docket: IMM-2873-00
BETWEEN:
RAFAEL GUTIERREZ GONZALEZ, ELIDA MARIS SANABRIA
PORTUGUEZ, ESTEBAN JAVIER GUTIERREZ SANABRIA,
RAFAEL GUTIERREZ SANABRIA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.
[1] The applicants, the parents and two of their three children, seek a stay of the execution of a removal order scheduled for June 15, 2000 pending determination of their application for leave and judicial review filed on June 5th, 2000 from a decision of Immigration Officer Andrew Rustja to execute their removal from Canada when their application for permanent residence in Canada with inland processing based on humanitarian and compassionate ("H & C") grounds has been outstanding since November of 1999. The focus of the parent applicants" arguments is their eight year old Canadian born child who"s interest they alleged has not been taken into consideration.
[2] As will become apparent from these reasons, it is not necessary for me to set out in any detail the applicants personal backgrounds in Nicaragua and in Costa Rica, their first arrival in Canada in 1989, their failed refugee claim in 1992, the birth of the Canadian child in 1992, their deportation from Canada in 1995, their second coming to Canada in 1997, their second failed refugee claim in March of 1999 with leave denied by this Court in June of that year and a refused PDRCC claim.
[3] What concerns me most in this case is the treatment of their November 1999 application for inland processing of an application for permanent residence which is still outstanding.
[4] Harry Adamidis an enforcement officer with the Greater Toronto Enforcement Centre (GTEC) of the respondent working there since February 2000 swore an affidavit in these proceedings. He acknowledges the H & C application was submitted in November of 1999 yet says it was received in Vegreville, Alberta in January 2000 and was forwarded to the Woodbridge Canada Immigration Centre in March 2000 adding the application could have been approved in principle in Vegreville but was not.
[5] Applicants" former counsel in a letter dated May 11, 2000 to CIC (produced by Mr. Adamidis) says the application was processed from January 2000 to March 2000 in Vegreville before it was received in Woodbridge CIC on March 15th , 2000. Nothing in the affidavit material provides any information on what happened in Vegreville during the December to March period.
[6] Mr. Adamidis then deposes to the fact it will be at least 8 months before the H & C application will be reviewed and possibly scheduled for interview two to four months later because of the significant backlog at Woodbridge.
[7] Counsel for the applicants, in argument, put before me the January 28th, 2000 decision of Madam Justice Reed in Paterson v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. 139 in which a stay of the execution of a removal order issued by the GTEC officer was granted pending judicial review of the removal officer"s decision to execute removal notwithstanding an outstanding H & C application made 4 months earlier.
[8] In her reasons, Justice Reed referred to the existence of a policy by the respondent not to execute removal orders against individuals who have filed H & C applications when the processing of the application has been pending for more than six months, a circumstance not applicable in the case before her but arguably applicable in the case before me.
[9] Having dealt with other stay applications, I was aware of the existence of such a policy in other CIC centres in another province where backlog exist. I raised at the hearing this issue with counsel for the respondent who indicated she thought such a policy did not exist or did not apply in the Toronto Area.
[10] The state of the record does not satisfy me on a number of points related to this policy: under what circumstances it was put into place, the policy reasons behind it, how does it operate, whether it still exists in Toronto, when was it discontinued if it was, why it was discontinued, whether it was breached in this case and so why.
[11] I am of the view that the interest of justice requires that an interim stay of the execution of the removal order against the applicants pending clarification of the issues related to the policy which the respondent may address through a fresh affidavit addressing the Court"s concerns upon which the applicants will have a right of cross-examination. I will remain seized of the ultimate issue and may be spoken to about scheduling.
[12] It flows from the possibility of a breach of the 6-month outstanding H & C policy that the applicants would suffer irreparable harm and that the balance of convenience is in their favour.
[13] For these reasons, an interim stay of the execution of the applicants" removal will be issued and will remain in effect until a further order of this Court.
"François Lemieux"
J.F.C.C.
Toronto, Ontario
June 14, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: RAFAEL GUTIERREZ GONZALEZ, ELIDA MARIS SANABRIA PORTUGUEZ, ESTEBAN JAVIER GUTIERREZ SANABRIA, RAFAEL GUTIERREZ SANABRIA |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| DATE OF HEARING: MONDAY, JUNE 12, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: LEMIEUX J. |
DATED: WEDNESDAY, JUNE 14, 2000
| APPEARANCES: Ms. Chantal Desloges |
Ms. Neeta Logsetty
| SOLICITORS OF RECORD: Green & Spiegel |
Barristers & Solicitors
121 King Street West, Suite 2200
| Deputy Attorney General of Canada |
FEDERAL COURT OF CANADA
Date: 20000614
Docket: IMM-2873-00
BETWEEN:
| RAFAEL GUTIERREZ GONZALEZ, ELIDA MARIS SANABRIA PORTUGUEZ, ESTEBAN JAVIER GUTIERREZ SANABRIA, RAFAEL GUTIERREZ SANABRIA |
Applicant
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
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