Date: 20090327
Docket: IMM-505-09
IMM-902-09
Citation: 2009
FC 323
Ottawa, Ontario, March 27, 2009
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
EDINSON
CAICEDO SANCHEZ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
Applicant with a record of drug trafficking and fraud seeks to invoke the
Court’s equitable jurisdiction. The Applicant asked for stay of his removal to
the United States or Colombia. This case turns on irreparable harm and
balance of convenience.
[2]
The
Applicant has a lengthy criminal record going back to 1985. It culminated in a
1992 conviction in the United
States for
cocaine trafficking. Upon completion of his sentence, he was deported from the United States.
[3]
The
Applicant then returned to the United States illegally and eventually worked
his way to Canada. He entered Canada using a false identity and
then, using that false identity, applied for refugee protection. That
application was denied.
[4]
Sometime
later the Applicant’s true identity was discovered and steps were commenced to
have him removed.
[5]
In the
face of his illegal status and with knowledge that the Applicant had used a
false identity, the Applicant’s current wife married him. This knowledge of his
past is relevant because the harm alleged is principally that of his wife who
entered into the union knowing the Applicant’s predilection for illegal
conduct.
[6]
Despite
all this, the Applicant filed an H&C application and an application to
clear his record (rehabilitation application). That application would have
taken care of his criminal record and permitted the filing of a spousal
application.
[7]
The first
rehabilitation application was returned for want of certain details. The second
rehabilitation application was apparently lost by CIC.
[8]
When the
Applicant was called in for an interview, the Officer was informed of the
pending rehabilitation application and had some information that the
application was lost somewhere within CIC. The Officer chose to ignore these
facts and dismissed the H&C application.
[9]
The
Applicant raises the issue of whether the Officer acted unreasonably in denying
the H&C in the face of a timely filed rehabilitation application, the
resolution of which had been stymied by CIC’s mistakes.
[10]
Assuming
that this is a serious issue, which I do for purposes of this stay motion, the
question is whether irreparable harm has been made out.
[11]
In my
view, it has not. I adopt Justice Shore’s reasoning in Perry
v. Canada (Minister of Public Safety
and Emergency Preparedness),
2006 FC 378, that, generally, substantial economic or psychological hardship to
a family unit is not sufficient to establish irreparable harm.
[12]
The
Applicant’s spouse who is completing her Masters in Occupational Health claims
that she is dependent on her husband for emotional and financial support. It is
highly unlikely that she will be forced on to welfare as she claims. She
married the Applicant knowing the details of his illegal status, his criminal
convictions and his fraudulent conduct. It is difficult for her to now object
to the natural consequences of a readily foreseeable deportation.
[13]
The plea
concerning “best interests of the children” is largely addressed by the fact
that the children of the Applicant’s wife are young adults of 18 and 20.
[14]
It is
hardly irreparable harm that the Applicant will be required to apply for status
from outside Canada in the manner that the very
vast majority of immigrants do daily.
[15]
Lastly, on
the balance of convenience, there is some debate about whether the “clean
hands” principle is a separate issue from that of balance of convenience. For
purposes of this case, the debate is immaterial.
[16]
The Court,
in this case, weighs (among other factors such as the legislative requirement
for removal) the conduct of the department (at worst incompetence) versus that
of the Applicant (drug dealing/fraud and misrepresentation). There is simply no
contest that the balance of convenience favours the Respondent and the
Applicant is not deserving of this Court’s broad equitable jurisdiction and
relief. The Court of Appeal in Baron v. Canada (Minister of Public Safety and Emergency
Preparedness),
2009 FCA 81, addressed the importance of the application of the “clean hands”
principle.
[17]
Therefore,
this motion for a stay is dismissed.
ORDER
THIS COURT ORDERS that this motion for a stay is
dismissed.
“Michael
L. Phelan”
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