Date: 20020513
Docket: IMM-1993-02
Neutral citation: 2002 FCT 543
BETWEEN:
JOCELYN ADVIENTO
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKay J.
[1] These are brief reasons for allowing, on May 3, 2002, a stay of removal order scheduled to be executed against the applicant on May 4, 2002.
[2] The applicant is a citizen of the Philippines who came to Canada in July 1990 under the Foreign Domestic Program, now the Live in Caregiver Program. When she came to Canada she passed the necessary medical examination. She fulfilled the terms of the program and applied for permanent residence in Canada, including her husband, but by letter of October 26, 1995 she was advised that since her husband was under an effective removal order, her application for landing was refused.
[3] In 1994 the applicant became very ill, was diagnosed with kidney failure and started on dialysis. Since 1996 she has been on continuous ambulatory peritonial dialysis, four times daily, provided to her without charge by Toronto Western Hospital. This has allowed her to live a virtually normal life without hindering her ability to work and to care for herself.
[4] In 1996 the applicant applied again for permanent residence. She was found to be medically inadmissible and her application was refused. However, she was not aware of that refusal until January 1999, when she applied for an extension of her work permit. At that time she says she was advised by an Immigration Officer that she would receive a Minister's Permit after completing relevant forms and submitting a humanitarian and compassionate ("h & c") application for landing from within Canada. That application was submitted in March 2000. She was not interviewed in relation to it and the application was refused on January 9, 2002. A Minister's Permit was not issued to her at any time.
[5] The Immigration Officer who refused the h & c application in January of this year, noted in her reasons that she had information that there were appropriate health facilities in the Philippines to accommodate the applicant. That information was not contested by the applicant's then counsel. New counsel was retained and thereafter, for the applicant, documentary evidence was obtained indicating she would not be likely to receive proper dialysis treatment in the Philippines. The applicant then filed a new h & c application for landing from within Canada, this time with information about the difficulties of arranging for dialysis treatment in the Philippines, and even if it were available, the high cost which, it is said, makes the treatment inaccessible to the average person there.
[6] Counsel for the applicant then sought to persuade removal officers not to remove the applicant, in light of the evidence provided by a specialist in the Philippines, because of the perceived potential risk to the applicant's life if she were removed to the Philippines. The immigration officers involved appeared to understand the concern about the continuing necessity for appropriate care, a matter not in dispute before me.
[7] Nevertheless, the applicant was arrested on May 1, 2002. On the following day she was advised that she would be removed on May 4, 2002 to the Philippines.
[8] In addition to the application for a stay, the applicant filed on May 1, 2002 an application for leave to commence an application for judicial review in relation to the decision then anticipated and subsequently made, that the applicant be removed from Canada. It may be that, in the ordinary course, a motion to stay removal pending determination of the underlying application for judicial review which concerns essentially the same decision, is not readily granted. Nevertheless, in the circumstances of this case, where there is conflicting evidence before the Court of the availability of and the accessibility to health services in the Philippines, which services are conceded to be essential for the applicant's life, there is a serious issue before the Court, raised by the application for leave and for judicial review.
[9] Moreover, in my view, irreparable harm is here established. It is accepted that the applicant's life is dependent upon continuing specialized medical/health services, there is conflicting evidence whether those services are reasonably available and accessible to the applicant should she be removed from Canada, and the evidence seriously questioning accessibility in the Philippines has not been considered by those responsible for h & c decisions or removal decisions. Loss of the opportunity for consideration of that evidence, in the circumstances, constitutes irreparable harm.
[10] Clearly, in these circumstances the balance of convenience favours the applicant.
[11] For these reasons an Order issued following the hearing staying execution of the removal order relating to the applicant, pending determination of the application for leave and for judicial review.
(signed) W. Andrew MacKay
_______________________________
JUDGE
OTTAWA, Ontario
May 13, 2002.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-1993-02
STYLE OF CAUSE: Jocelyn Adviento v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 3, 2002
REASONS FOR ORDER OF The Honourable Mr. Justice MacKay
DATED: May 13, 2002
APPEARANCES:
Ms. Krassina Kostadinov / Mr. Lorne WaldmanFOR THE APPLICANT
Mr. Marcel LaroucheFOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Jackman,Waldman & AssociatesFOR THE APPLICANT
Toronto, Ontario
Mr. Morris RosenbergFOR THE RESPONDENT
Deputy Attorney General of Canada
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