Gandara v. Canada, docket IMM-3712-96

     IMM-3712-96

Between:

     ALICIA SOFIA GANDARA,

     Applicant,

     - and -

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

DUBÉ, J.

     This application is for an interim order pursuant to section 18.2 of the Federal Court Act, staying the execution of the removal order issued against the applicant.

     The applicant is a 45-year old lady who entered Canada with her two daughters on September 22, 1990, and made a claim to Convention refugee status. On September 10, 1992, the Convention Refugee Determination Division rendered a negative decision finding that the applicant and her children did not have good grounds for fearing persecution should they return to Guatemala.

     Before coming to Canada, the applicant and her two daughters lived in Houston, Texas, from 1984 to their date of entry into this country. On November 22, 1993, the immigration attaché of the Embassy of the United States in Ottawa authorized the return of the applicant and her children to the United States. Thus, the removal order in question is for removal to the United States and not to Guatemala. On June 27, 1995, the applicant and her children were found to be ineligible for membership in the Post Determination Refugee Claimants in Canada Class as their claims to refugee status had been determined prior to February 1, 1993. The Post-Claim Determination Officer conducted a risk assessment and determined that the applicant and her children did not face an objectively identifiable risk to life, of extreme sanctions, or inhumane treatment if they were returned to Guatemala.

     On May 30, 1996, the applicant and her children were informed that they were not eligible for inclusion in the Deferred Removal Order Class (the"DROC") as they had hindered or delayed the removal from Canada. On June 20, 1996, the applicant's then counsel requested a reconsideration of that decision alleging that the applicant and her children did not hinder or delay their removal from Canada. The applicant was advised on September 10, 1996, that the DROC decision would not be re-opened. On October 15, 1996, the then counsel filed an application for leave and for judicial review of the DROC decision.

     The grounds for the instant motion to stay the removal are that the applicant has an arguable case in the main application for judicial review, and that if she is successful the applicant and her children would suffer irreparable harm by being deported before the Court has determined her application on its merits.

     In fact, the present counsel for the applicant submits that she has four serious issues to be argued which, for these purposes, are reduced as follows:

1.      The Tribunal erred by misconstruing the eligibility requirements of paragraph (f) of the definition of DROC set out in section 2 of the Immigration Regulations;

2.      The Tribunal made an unreasonable determination that the applicant's request for permission to removal in Canada amounted to a hindering or delaying of the execution of the deportation order;

3.      The Tribunal denied the applicant procedural fairness by depriving her of an opportunity to be heard; and

4.      The Tribunal erred by failing to consider that the applicant had permission to remain in Canada until September 15, 1995, five days after she became eligible to apply for landing under DROC.

     These issues will undoubtedly have to be resolved under judicial review if leave is granted. But, for the purposes of this stay application, I only have to determine whether or not there is a serious issue to be tried. In my view, there is. It is common ground that, apart from the hinderance allegation under paragraph 2(f) the applicant would qualify as a member of the DROC class and the grounds advocated by the applicant on that score are not frivolous.

     The applicant also has to meet the second crucial criteria for a granting of a stay of removal, namely the burden to show that she will suffer irreparable harm. The basic irreparable harm test in deportation matters has been defined by the Federal Court of Appeal in Toth v. The Minister of Employment and Immigration (1988), 86 N.R. 302 (F.C.A.) as follows:

     That test has been applied in different ways by different judges in different stay applications. It really turns on the specific facts of each case. In the instant case, I am of the view that the applicant and her daughters have met the irreparable harm test and for these reasons.

     The affidavit evidence of the applicant and her daughters is to the effect that they have been in Canada for the past six years. The daughters are presently enrolled in school in Canada. They are both very fragile and depressed by the prospect of removal. Not only are they in the middle of the school year, they also have both developed extensive friendships in Vancouver. Neither of the daughters speak Spanish very well and if they are returned to Guatemala their education would suffer severely. If they are removed to the United States the family has no status there and their lives will be in limbo. Thus, if they are removed at this time they will suffer irreparable harm to their education, as well as emotional trauma and upset at being forced to leave Canada.

     The intention of the immigration authorities is presently to remove them to the United States but there is a very serious possibility that the United States, in turn, will remove them to Guatemala as they have no legal standing whatsoever in the United States.

     The family history is tragic. When the applicant was 22-years old and still in Guatemala she became involved with one Jorge Maldonado, a married man who lived with her from time to time. She gave birth to her daughters in 1980 and 1981, both children being fathered by Maldonado. The latter was involved in political activity and, in August 1981, fled Guatemala to the United States after he was stopped, assaulted and arrested by some men in military uniforms. On October 16, 1981, the applicant and her oldest daughter left Guatemala to join Maldonado in Houston, Texas, after he informed her that her life was in danger. The infant daughter was left in Guatemala with the applicant's parents and was finally able to join them in Houston in 1984. In June 1990, the applicant and Maldonado were separated and the applicant and her daughters left for Canada shortly thereafter.

     In short, the applicant has not been in Guatemala since 1981 - almost 16 years. The daughters have been raised as North Americans. Their mother tongue is English. If they are removed to the United States, they will be alone facing uncertainty, with no visible means of support. If they are deported from the United States to Guatemala, the daughters will very likely find themselves in a chaotic situation and face a severe setback in their education. Added to that is the fear that if they are removed now they will lose their membership in the DROC class as they will no longer be in Canada subject to an unexecuted removal order.

     As to the third criteria for a stay, the balance of convenience, if the applicant and her daughters are allowed to stay in Canada until their judicial review application has been dealt with, they may see their present ordeal brought to a successful conclusion; at least the daughters will be able to complete their school year, without any major inconvenience to the respondent.

     Consequently, the application for a stay is granted and the respondent is ordered not to remove the applicant and her two daughters unless and until their application for leave and judicial review has been determined against them.

                                 (Sgd.) "J.E. Dubé"

                                     Judge

Vancouver, B.C.

January 14, 1996