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Section de première instance de
la Cour fédérale du Canada
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Date: 20000609
Docket: IMM-2653-00
Between:
ZOFIA CIBOROWSKA
Plaintiff
‑ and ‑
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER
TREMBLAY‑LAMER J.:
[1] The plaintiff applied for a stay of execution of a
deportation order issued against her on May 18, 2000. The immigration officer
informed the plaintiff that her application for permanent residence would not
be assessed before she left Canada in view of the Minister’ s policy not to
give priority to applications under s. 114(2) of the Immigration Act
("the Act")1 received less than six
months before the removal date.
[2] The plaintiff came to Canada over 11 years ago, on May
28, 1989, with a visitor’s visa. She is a citizen of Poland. She is a single parent and her son is of Canadian nationality by birth.
[3] On December 5, 1990 the plaintiff filed an application
as a refugee, an application which has never been traced.
[4] In January 1994 the plaintiff filed another application
as her initial application had been lost by Immigration Canada. This
application was heard on February 14, 1996 and a negative decision made
regarding her.
[5] On February 29, 2000 the plaintiff received a risk
evaluation decision, nearly ten years after her initial application. In early
May 2000 the plaintiff submitted a landing application made in Canada as the spouse of a permanent resident and for humanitarian reasons. This application
was received by Immigration Canada at Vegreville on May 8, 2000.
[6] The plaintiff married her de facto spouse on or
about May 28, 2000 after he had received his final divorce decree.
[7] The plaintiff’s application for a stay will be valid if
she persuades this Court that she meets the tests laid down in Toth v. Canada (M.E.I.).2
[8] To begin with, is there a serious issue? This Court’s
decisions have several times recognized3 that the Minister has no
duty to examine an application made on humanitarian grounds before implementing
a removal order. Accordingly, this allegation cannot itself constitute a
serious issue.
[9] The plaintiff further argued that the defendant had
failed to assess the plaintiff’s risk of removal in her country of origin. I do
not accept such a statement. On February 29, 2000 a post‑claim
determination officer ("PCDO") informed the plaintiff that her case
had been reviewed and it had been concluded that she did not run any of the
risks listed in the definition of a member of the PDRCC class. The plaintiff
did not file an application for judicial review of that decision. I do not see
how she can now object that the defendant did not evaluate the risk before
implementing the removal order.
[10] She also raised an error by the immigration officer, who
ruled that the landing application under s. 114(2) of the Act should have
been submitted six months before the removal date.
[11] In this regard counsel for the defendant,
Mr. Pépin, confirmed that a departmental directive exists4 indicating
that as of October 1999, except for classes of persons at risk and applications
filed beyond the six‑month limit, "last‑minute"
applications pursuant to s. 114(2) would no longer be processed before
removal.
[12] Although the defendant must consider any application
under s. 114(2), I recognize that she has no duty under the Act to do so
within a given time. Further, there is no allegation in the case at bar that
the defendant acted in bad faith. It also cannot be argued that the delay in
processing the humanitarian application was unjustifiable, since it was filed
in early May.
[13] However, the decision challenged by the plaintiff in the
case at bar is that of the removal officer.
[14] Section 48 of the Act provides that a removal order must
be implemented as soon as circumstances permit. This Court’s decisions have
held that removal officers enjoy a measure of discretion, in particular as to
the pace at which they proceed with the removal.5
[15] My colleague Simpson J. considers that this discretion
may include "consideration of whether it is reasonable to await a pending
decision on a H&C application before removal".6
In any case, though limited, this discretion does exist and the officer should
exercise it.
[16] In view of the Department’s recent directive to cease
giving priority to "last‑minute" humanitarian applications
under s. 114(2) of the Act, the exercise of such discretion becomes
especially important.
[17] In the case at bar the defendant submitted no affidavit
by the removal officer to confirm whether he exercised his discretion, and if
so whether he did this fairly.
[18] I therefore conclude that the absence of evidence that
the officer exercised his discretion fairly before carrying out the removal
order constitutes a serious issue.
[19] On the second point, irreparable harm, I am satisfied
that it has been met. Although several judgments of this Court have found that
the separation of a family temporarily is not irreparable harm as such, each
judgment rests essentially on the specific facts of the case. In several
instances the Court has recognized that when there is good evidence that the
deportation may produce serious hardship for the family there may be
irreparable harm.7
[20] In the case at bar counsel for the defendant admitted
that a year might elapse before the humanitarian application is reviewed. In
my opinion, the longer the delay in processing humanitarian applications
involving the separation of spouses or disruption of a family, the greater the
trauma will be. What might have been only an unfortunate hardship in the case
of a separation of a few months will, in my view, constitute irreparable harm
if it extends over a lengthy period.
[21] I am therefore persuaded that the evidence in the case
at bar supports the existence of irreparable harm.
[22] On the balance of convenience, I recognize that the
defendant has a duty to ensure that the public interest is protected. However,
Immigration Canada took 11 years to process the plaintiff’s case.
During that time she gave birth to a son in Canada and began a new life with a
permanent resident whom she married as soon as he obtained his final divorce
decree. Her husband filed a sponsorship application and if the marriage proves
to be authentic the plaintiff has a good chance of her humanitarian application
being successful. In view of the foregoing, I consider that the balance of
convenience is in the plaintiff’s favour.
[23] The motion for a stay is granted until the application
for judicial review is decided.
Danièle Tremblay‑Lamer
JUDGE
OTTAWA, ONTARIO
June 9, 2000
Certified true translation
Martine Brunet, LL. B.
APPENDIX A
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAME OF COUNSEL AND SOLICITORS OF
RECORD
COURT
No. IMM-2653-00
STYLE OF CAUSE: ZOFIA
CIBOROWSKA
v.
MCI
PLACE OF
HEARING: MONTRÉAL, QUEBEC
DATE OF
HEARING: May 29, 2000
REASONS
FOR ORDER BY: TREMBLAY-LAMER J.
DATED: JUNE
9, 2000
APPEARANCES:
ME
ANTHONY KRAKAR FOR THE PLAINTIFF
ME
MICHEL PÉPIN FOR THE DEFENDANT
SOLICITORS
OF RECORD:
ME
ANTHONY KRAKAR FOR THE
PLAINTIFF
M.
Morris Rosenberg FOR
THE DEFENDANT
Deputy
Attorney General of Canada
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