Date: 20070417
Docket: IMM-1477-07
Citation: 2007 FC 401
Toronto, Ontario, April 17, 2007
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
HARRY
OMAR BONIL ACEVEDO
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
OVERVIEW
[1]
This Motion for stay of the removal order against the Applicant
is based on the existence of valid issues raised in his Application for Leave
and Judicial Review of the Removal Officer’s refusal to grant the request for a
deferral of the removal order.
BACKGROUND
[2]
The Applicant has a Canadian wife, who is unable to work for
medical reasons, and two very young Canadian children, one of whom is diagnosed
with developmental challenges, hence requiring special care.
[3]
The Applicant filed a permanent residence application under the Spouse
or Common Law Partner in Canada class and with an alternative plea for Humanitarian
and Compassionate Considerations (H&C). The Applicant had submitted
his permanent residence application and has requested an expedited processing
of the same.
[4]
This Motion is based
on serious legal and equitable issues, as well as irreparable harm, that will
be caused if the Applicant’s removal from Canada is not stayed pending determination of
the main Application for Leave and Judicial Review.
ISSUES
[5]
(1) Does
the Applicant raise a serious issue?
(2) Will the Applicant or another person
suffer irreparable harm should the Applicant be removed from Canada?
(3) Does
the balance of convenience favour the Applicant?
ANALYSIS
[6]
In
Turbo Resources Ltd. v. Petro Canada Inc., [1989] 2 F.C. 451 (F.C.A.), [1989]
F.C.J. No. 14 (QL), the Federal Court of Appeal has described the object of an
interlocutory injunction as follows:
The object of an
interlocutory injunction is to protect the plaintiff against injury by
violation of his right for which he could not be adequately compensated in
damages recoverable in the action if the uncertainty were resolved in his
favour at the trial; …
[7]
The
test to be applied in determining whether or not to grant a stay of removal has
been established in Toth v. Canada (Minister
of Employment and Immigration), [1988] 86 N.R. 302 (F.C.A.), [1988] F.C.J. No. 587 (QL), where
the Federal Court of Appeal held:
The tri-partite test of Cyanamid requires, for the granting of such an
order, that the applicant demonstrate, firstly, that he has raised a serious
issue to be tried; secondly that he would suffer irreparable harm if no order
was granted; and thirdly that the balance of convenience considering the total
situation of both parties, favours the order.
(Reference is also made to: American Cynamide Co. v. Ethicon
Ltd. [1975] A.C. 396 (House of Lords).)
SERIOUS ISSUE
[8]
The Supreme Court of Canada has held that the test of:
"serious issue to be tried" is simply that the issue being raised is
one which is “neither frivolous nor vexatious.” (RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at para. 44.)
[9]
In North American
Gateway Inc. v. Canada (Canadian Radio-Television and
Telecommunications Commission),
[1997] F.C.J. No. 628 (QL), this test of a serious issue to be tried was
further clarified in another case where it was held:
[10] The jurisprudence directs that the
threshold of "serious issue to be tried" is a low one. The earlier
jurisprudence suggested that the applicant had to establish a prima facie case
before a stay would be granted. Since the decisions of the Supreme Court of
Canada in Metropolitan Stores Limited v. Manitoba Food and Commercial
Workers et al., [1987] 1 S.C.R. 110 and R.J.R. MacDonald, supra, the
courts have held that the threshold is much lower: the applicant need only
satisfy the Court that the matter on appeal is neither frivolous nor vexatious..
[10]
In Munar v. Canada (Minister of Citizenship and Immigration), [2006]
2 F.C.R. 664, [2005] F.C.J. No. 1448 (QL), it has also been recently held by
this Court that:
[21] In the case of an application for a stay
of the decision of a removal officer, the Court must not only determine whether
a serious issue is raised, but should go further and consider the merits of the
application and the likelihood of success…
[11]
Justice Yves de Montigny further ruled in the same
case of Munar, above, agreeing with Justice Denis Pelletier in Wang
v. Canada (Minister of Citizenship and Immigration), 2001 FCT 148, [2001]
F.C.J. No. 295 (QL), that this higher threshold is justified where the
outcome of the interlocutory relief sought will effectively result in a final
determination of the main action.
[10] The
Supreme Court of Canada has held that the test of "serious issue to be
tried" is simply that the issue being raised is one which is not
frivolous. RJR-MacDonald Inc. v. Canada (Attorney General),
[1994] 1 S.C.R. 311 at para 44, [1994] S.C.J. No. 17. On the other hand, to
succeed in the underlying judicial review, the applicant will have to show that
the decision not to defer was subject to review for error of law,
jurisdictional error, factual error made capriciously, or denial of natural
justice. Federal Court Act, R.S.C. 1985 c. F-7 subsection 18.1(4). The
result is that if the stay is granted, the relief sought will have been
obtained on a finding that the question raised is not frivolous. If the stay is
not granted and the matter proceeds to the application for judicial review, the
applicant will have to demonstrate a substantive ground upon which the relief
sought should be awarded. The structure of the process allows the applicant to
obtain his/her relief on a lower standard on the interlocutory application, notwithstanding
the fact that the relief is the same as that sought in the judicial review
application. It is this congruence of the relief sought in the interlocutory
and the final application which leads me to conclude that if the same relief is
sought, it ought to be obtained on the same basis in both applications. I am
therefore of the view that where a motion for a stay is made from a Removal
Officer's refusal to defer removal, the judge hearing the motion ought not
simply apply the "serious issue" test, but should go further and
closely examine the merits of the underlying application.
[12]
In this Application, the serious issue being raised is whether
the Removal Officer erred in law in refusing to defer removal of the Applicant
pending the determination of his permanent residence application under the
public policy enunciated in the Spouse and Common Law Partner in Canada class
and a pending alternative plea for H&C considerations, including the
best interests of the Canadian children involved.
Pendency of
the Spousal Sponsorship/H&C Application
[13]
The Applicant filed his permanent residence application on March
31, 2007 (late date for reasons described below) under the Spouse and Common
Law Partner in Canada class and also an alternative plea for H&C grounds, which
included the best interests of his Canadian children.
[14]
Due to unusual and exceptional circumstances revolving on a
particular fact-situation, described below, the Applicant was not yet removal
ready pending his application for permanent residence, based on the Spouse or
Common Law Partner in Canada class and H&C considerations.
[15]
It is settled law that a removal officer has certain discretion to defer
removal when requested. (Man v. Canada (Minister of
Citizenship and Immigration) 2005 FC 454, [2005] F.C.J. No. 574 (QL).)
[16]
The following statement by Justice Conrad von Finckenstein by way of an Addendum
in the case of Benjamin v. Canada (Minister of Citizenship and
Immigration) 2006 FC 582, [2006] F.C.J. No. 750 (QL), is
relevant to the case at bar:
[18] This case was twice postponed to allow
the Applicant to make an application under the 'Public Policy under A25(1) of IRPA
to Facilitate Processing in the Spouse or Common Law Partner in Canada
Class' dated August 26, 2005. This has since been done on December 31, 2005 and
the application is in process. It is expected that the Respondent will grant
the Applicant an administrative deferral of removal as set out in section
"E" of that policy. This Court can see no benefit in removing the Applicant
to Nigeria, while his application (sponsored by his wife) is being considered,
only to bring him back to Canada in an expedited fashion should his
application be successful, as was suggested by the Respondent. Such a procedure
totally fails to take into account the pain, dislocation and emotional toil
entailed in any removal. The Respondent should keep the aforementioned factors
in mind before attempting a removal while the Applicant's 'spouse in Canada application' is pending.
[17]
In most cases, this Court has held that the pendency of an inland
spousal or H&C application does not entitle the applicant to a deferral of
a removal order. The motion for stay, in this particular case, is unique, unto
itself, due to the chronology of facts and the actual narrative set therein.
[18]
In the present case, the sponsorship H&C
application was filed before the notification of the negative PRRA decision and
before the removal order was issued.
[19]
In Haighighi v. Canada (Minister of Public
Safety and Emergency Preparedness), 2006 FC 372, [2006]
F.C.J. No. 470 (QL), the motion for stay of the removal order was granted but
the main application for judicial review was later dismissed. Again, the facts
of this case can be distinguished from the present one because in Haighighi,
the H&C application was filed only after the negative PRRA decision. In
that case, the applicants simply placed before the removal officer their
request for deferral with the statement that there is a pending H& C
application that had recently been filed. The applicant in Haighighi did
not provide the removal officer with a copy of the H&C application nor of
the document which addresses the newly-identified risk.
[20]
In
the present case, not only did the Applicant offer to the removal officer a
copy of the complete application package (which was refused), he also requested
that the removal officer receive copies of other documents specifying the
relevant H&C factors such as his wife’s medical condition, his son’s
developmental challenges and letters of support from his son’s kindergarten
teacher and the applicant’s employer. (Affidavit of the Applicant, paras. 31 to
33.)
[21]
In Perry v. Canada (Minister
of Public Safety and Emergency Preparedness), [2006 FC 378, [2006] F.C.J. No. 473 (QL), the Court held:
[14] The discretion of a removal officer to
defer removal under s.48 of the IRPA is extremely narrow. It is restricted to
determining when the removal order will be executed. In deciding when it is
"reasonably practicable" to execute a removal order, a removal officer
may consider compelling or special personal circumstances. (Simoes
v. Canada (M.C.I.), supra at para. 12;Wang v. Canada (M.C.I.), supra at para. 45; Kaur v. Canada (M.C.I.), supra at paras 15 and 18; Mollaw v.
Solicitor General of Canada, (September 28, 2004) IMM-8072-04) (Emphasis
Added)
[22]
It must be noted that the motion for stay was dismissed in the Perry
case because the H&C application was still not filed when the request to
defer the removal was made. The Applicant only presented as a basis for the request
an intention to file an H&C application.
[23]
In the present case, the Applicant made his application for
sponsorship/H&C prior to the notification of the negative PRRA decision and
the issuance of the removal order. Moreover, the Applicant also presented
compelling and special personal circumstances with evidence as to the request
for deferral.
[24]
Canada
has ratified the United Nations Convention on the Rights of the Child
which specifies the consideration of the best interests of the child. This
commitment was confirmed by the Supreme Court of Canada in the landmark
case of Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817,where it was held:
[71] … The principles of the
Convention and other international instruments place special importance on
protections for children and childhood, and on particular consideration of
their interests, needs, and rights. They help show the values that are central
in determining whether this decision was a reasonable exercise of the H & C
power.
[25]
Although
the removal officer does not have the discretion to make a full determination
on the issue of the best interests of children, the appropriate forum for such
a full consideration is through the Applicant’s sponsorship/H&C application.
Nevertheless, a removal officer, in the appropriate circumstances, does have
the discretion to defer removal until such time as the best interests of the
child are fully considered in this process.
[26]
It is also established that removal
officers are nonetheless expected to be “alert and sensitive” to the best
interests of the child. For instance, it has been held that:
[19] It is clear from this decision, and from
others like it, that a Removal Officer does have a duty to be alive and
sensitive to the short-term interests of children facing the removal of a
primary caregiver from Canada: also see John v. Canada (Minister of
Citizenship and Immigration) [2003] F.C.J. No. 583, 2003 FCT 420. If it is expected that children will
remain in Canada, it is imperative to consider the
adequacy of the arrangements that have been put in place for their care once
the parent has left.
(Munar v. Canada (Minister of
Citizenship and Immigration),
2006 FC 761, [2006] F.C.J. No. 950 (QL); Betton
v. Canada (Minister of Public Safety and Emergency
Preparedness). 2006 FC 1401, [2006] F.C.J.
No. 1401 (QL).)
[27]
It had likewise been held by this Court:
[40] …
I cannot bring myself to the conclusion that the removal officer should not
satisfy himself that provisions have been made for leaving a child in the care
of others in Canada when parents are to be removed. This is
clearly within his mandate, if section 48 of the IRPA is to be read
consistently with the Convention on the Rights of the Child. To make
enquiries as to whether a child will be adequately looked after does not amount
to a fulsome H&C assessment and in no way duplicates the role of the
immigration officer who will eventually deal with such an application …
(Munar v. Canada (Minister
of Citizenship and Immigration), [2005] FC
1180, above.)
[28]
In Betton above, the Court found
that, “at least some of the concerns about Mr. Betton's children were
immediate -- in particular, their care and financial support in the short-term.
The officer should have considered whether a deferral of Mr. Betton's removal
was necessary to allow an opportunity for appropriate arrangements to be made
for the children.” The Court found that the removal officer failed to
consider this important factor; therefore, the application for judicial review
was allowed and an order was made requiring another officer to consider Mr.
Betton's request to defer the removal order.
[29]
It is also very interesting to note
that in the case of Varga v. Canada (Minister of Citizenship
and Immigration), 2006 FCA 394, [2006] F.C.J. No.
1828 (QL), which was invoked by the PRRA officer as basis for asserting that he
did not have an obligation to consider the best interests of Canadian children
in assessing the risks of removing at least one of the parents of the children,
the Court also stated:
[19] Counsel
for the Minister conceded that, if the respondents' H&C application had not
been completed, they could have requested the removals officer to defer their
removal pending the H&C consideration of any risks that their Canadian-born
children would face in Hungary, assuming that leaving them in Canada was not a
viable option. Thus, although the respondents were not entitled to have this
issue taken into account by the PRRA officer, they would not be removed without
some further consideration of the situation by the removals officer.
[30]
In the case at bar, the Applicant did, in fact, do the necessary.
In his Request for a Deferral of the Removal order, the Applicant specified the
risks and irreparable harm that his children would suffer if he should be
removed, demonstrating that leaving his family behind is not a viable option.
[31]
It has been repeatedly emphasized in the deferral request letter
as well as during the interview on April 4, 2007, that the Applicant has a
Canadian wife, unable to work for medical reasons, and two Canadian children:
his five-year old stepson, Favian, has been diagnosed with special needs
arising from developmental challenges and he also has his two-year old
daughter, Yvanna.
[32]
The removal officer has been fully notified of Favian’s special
needs as well as of his mother’s (Applicant’s wife) medical condition arising
from the injuries sustained from a car accident last year. The removal officer
was also given copies of a medical report confirming the mother’s medical
condition and a professional assessment of Favian’s developmental challenges. (Affidavit
of Applicant, paras. 31 to 33.)
[33]
A consequence of the injuries sustained by the Applicant’s wife
from last year’s accident is that she cannot work or live independently for
extended periods of time. As a result of the total loss of hearing in her left
ear, she is now unable to drive, lost her sense of balance, experiences
frequent headaches and dizzy spells, which make it even more difficult for her
to return to work or to take care of her two children by herself. (Affidavit of
Ginette Samanta Haacke Jimenez, paras. 15 and 16.)
[34]
Since the Applicant’s wife cannot work due to her medical
condition, the Applicant remains the sole income earner of his family. His
income becomes even more significant for Favian, whose special needs require
him to be constantly involved in various school and extra-curricular
activities, all of which entail additional expense for the family. (Affidavit
of Ginette Samanta Haacke Jimenez, para. 11.)
[35]
If
the Applicant is removed from Canada, his wife would not want to apply for
social welfare assistance either, knowing that this will make her ineligible to
sponsor her husband to enable him to return to Canada as a
permanent resident. This would lead to longer family separation which would
contribute to an even greater irreparable harm to the family, especially the
two growing children. Worse, the social welfare option would leave her and her
family in an endless cycle of destitution and poverty.
[36]
The
Applicant submitted an affidavit from Favian’s teacher who is not only
confirming the nature of Favian’s developmental challenges but also provides an
assessment of the seriously prejudicial effects on the child if separated from
the Applicant and/or moved to another country with the entire family. (Affidavit
of Nancy Alo, paras. 6 to 14.)
[37]
All of these factors strengthen the Applicant’s claim that his
removal from Canada will bring unusual, undeserved or disproportionate hardship on
his family, that is more than just the “mere inconvenience”
and “usual consequences of deportation” that Justice John Maxwell Evans
was referring to in the case of Tesoro v. Canada
(Minister of Citizenship and Immigration), 2005 FCA 148, [2005] F.C.J. No. 698 (QL).
[38]
The removal officer did not only refuse the deferral request but
also failed to explain his reasons for denial and why he was not convinced that
the children in particular, will face grave risks or suffer irreparable harm as
a result of the immediate enforcement of the Applicant’s removal order.
Reason for Delay in Filing Sponsorship/H&C
Application
[39]
Another related matter contributed to the
immigration difficulties in this case. That is, upon arrival in Canada, the Applicant retained the services of an
immigration consultant whom, he was under the impression, was a lawyer and paid
him for his services. The consultant provided services during his refugee
hearings at the IRB, and when it was denied, filed a Notice of Application for
Leave and Judicial Review with the Federal Court; however, the immigration
consultant did not file the required Application Record. The Applicant was not even
made aware of this omission until after he personally received the Federal
Court’s decision dismissing his application not on the merits, but due to the
“failure to file an Application Record.” Moreover, the Applicant was surprised only
to learn later that the immigration consultant is actually not a member of the
Ontario Bar hence could not appear before the Federal Court. (Affidavit
of Applicant, paras. 12, 53 to 54.)
[40]
Aside from the immigration consultant’s failure to represent the
Applicant’s interests at the Federal Court, he misled the Applicant. The advice,
the consultant gave, was that he could not file a permanent residence application
under the Spouse or Common Law Partner in Canada class until after a divorce
from his previous wife, even though the couple had been separated since 1999.
What the advice failed to consider was the fact that the Applicant has been
living together in a common-law relationship with his Canadian partner, hence
long eligible to file the sponsorship application. (Affidavit of Applicant,
paras. 56 to 59.)
[41]
As the legal divorce proceedings took longer than expected, and
that the final certificate of divorce was only obtained on March 29, 2007, the
earliest date that the Applicant could marry was the next day, March 30, 2007. As
a result, it was also only on that day that the Applicant thought he could file
the sponsorship/H&C application.
[42]
On the issue of a legal representative’s error, this Court has
held in the case of Medawatte v. Canada (Minister
of Public Safety and Emergency Preparedness), 2005 FC 1374, [2005] F.C.J. No. 1672 (QL), that:
[10] There is a great deal of
jurisprudence in these matters to the effect that a party must suffer the
consequences of his or her own counsel. I subscribe to that view. If a case has
been poorly prepared; if relevant jurisprudence was not brought to the
attention of the Court in a civil case; if there was a bad choice in witness
selection, the consequences fall on that party. Is there a difference, however,
between malfeasance and non-feasance? In this case, it is not a question of a
lawyer doing something poorly. He did not do something he should have done. In Andreoli
v. Canada (Minister of Citizenship and
Immigration) 2004 FC
1111; [2004] F.C.J. No. 1349, (QL), the applicants' refugee claim was ordered
abandoned because the interpreter in their lawyer's office failed to provide
the authorities with a change of address. I found in that case the board in
deciding that the applicants were the authors of their own misfortune was
punishing them for the carelessness of a third party. I found that to dismiss
that application would be to disregard the principles of natural justice. I
said:
I issue this order keeping in mind the
words of Lord Denning in Doyle v. Olby (Ironmongers) Ltd. (1969) 2 All
E.R. 119, who at page 121 stated: We never allow a client to suffer for the
mistake of his counsel if we can possibly help it. We will always seek to
rectify it as far as we can.
We will correct it whenever we are able
to do so without injustice to the other side. Sometimes the error has seriously
affected the course of the evidence, in which case we can at best order a new trial.
(Emphasis
added.)
[43]
In this case, the Applicant was prejudiced by a former legal
representative’s act and omission who also misrepresented himself as a member
of the Ontario bar. As a result, the Applicant did not receive adequate and
competent services. Without fully delving into this issue, this matter is
simply being raised as another special circumstance which could be a factor in
determining the existence of humanitarian and compassionate grounds surrounding
this application.
IRREPARABLE
HARM
[44]
The issue of what constitutes irreparable harm has been discussed
in a number of cases before this court. Some of the relevant ones are discussed
below.
[45]
In Martinez v. Canada (Minister
of Citizenship and Immigration),
2003 FC 1341, [2003] F.C.J. No. 1695 (QL), Justice J. François Lemieux
held as follows:
[18] The issue is whether the economic hardship and the
emotional distress which will be experienced by the wife and daughter
constitute irreparable harm…
[19] … the
Convention stresses the importance of the family and states in Article 7(1)
that it is a child's human right, as far as possible, to know and be cared for
by his or her parents. In my view, if the IRPA is to be applied in a manner
consistent with the Convention, the separation of a parent and child by the
state without a consideration of the best interests of the child would be an
ongoing infringement of the child's human rights. It also seems to me that
such an infringement of a human right constitutes irreparable harm
(Emphasis added.)
[46]
It
was further observed by Justice von Finckenstein in Rimoldi v. Canada (Minister of Citizenship and
Immigration) 2003 FC 1481, [2003] F.C.J. No. 1877 (QL):
[9] … The finding
of irreparable harm in Martinez, supra, is grounded on the facts of that case.
As described above, the applicant father in Martinez, supra, his spouse and their children all had
different nationalities. The only place where the children could access as of
right the opportunity to be cared for by their father was in Canada, if the father was
granted the right to remain. It was this implied lack of another country for
the children to go to that drove the irreparable harm determination.
[47]
The Court in Belkin v. Canada
(Minister of Citizenship and Immigration), [1999]
F.C.J. No. 1159 (QL), rejected the claim that
irreparable harm only refers to the possibility of interference to bodily
integrity of the person to be removed. Rather, it was held in that case that
judges have often found otherwise:
[12] First,
there is Toth v. M.E.I., [See Note 3 below] in which the Federal Court
of Appeal found that the possibility of the failure of the family business
headed by the appellant, which would lead to personal and economic problems for
the latter's family and unemployment for the employees of the business,
constituted irreparable harm. In Calabrese v. M.C.I., Mr. Justice Gibson
allowed a stay application in the case of a young man who was to have been
returned to Italy, a country he had left as a child and who did not speak
Italian. In Garcia v. M.C.I., Mr. Justice Dubé held that there would be
irreparable harm if a man whose state of health was fragile were returned to Nicaragua.
Gibson J. allowed a stay application in the case of a criminal undergoing
rehabilitation who would be deprived of the community resources on which he
relied on the ground that the loss of these sources of support would constitute
irreparable harm in his case. There are other similar examples.
[48]
The Court in Toth, above, held:
… if the applicant is deported now, there is a
reasonable likelihood that the family business will fail and that his immediate
family as well as others who are dependent on the family business for their
livelihood will suffer. I think that at least a portion of this potential harm
is irreparable and not compensable in damages.
[49]
Similarly,
in Melo v. Canada
(Minister of Citizenship and Immigration),
[2000] F.C.J.
No. 403 (QL), Justice Pelletier has concluded:
[19] … Irreparable harm, if it is to be found, must be found in
the circumstances of the applicant and those around him.
[20] … there
is authority in the Federal Court of Appeal to the effect that damage to the
economic and other interests of the applicant can satisfy the requirement of
irreparable harm.
[50]
The Court has likewise held in Melo, above, that the best
interests of the children will need to be considered in the main application
for judicial review. If the interlocutory motion is denied, their interests
will be prejudiced prior to them being fully considered thus “effectively
rendering judicial review nugatory.” Therefore, it was ruled in the same case
that:
[22] … It is
in circumstances similar to these that Robertson J.A. held in Suresh v.
Canada [1999] 4 F.C. 206, [1999] F.C.J. No. 1180 that the loss of the
benefit of an application can amount to irreparable harm within the meaning of
the tri-partite test in Toth. If there is to be any reality to the
judicial review application, the status quo must be maintained. While the
benefit in question may appear to be one for the children, it is also a benefit
for Mr. Melo. I find that the loss of the benefit of the application for
judicial review constitutes irreparable harm for the purposes of this
application.
[51]
In the case of Jmakina v. Canada (Minister of
Citizenship and Immigration), [1999] F.C.J. No. 1680, the Court has
found irreparable harm arising from the psychological effects on a child as a
result of a deportation.
[32] Counsel for the applicant
further submitted that the child applicant would suffer irreparable harm by
reason of his deportation to the United
States. I agree with that
submission. The evidence in the record establishes that the needs and interests
of the child applicant would be severely and adversely affected, particularly
in relation to his schooling, his psychological well-being and his relationship
with his stepfather, by the disruption caused in his life as a result of his
deportation to the United
States. In reaching this
conclusion, I have considered that the deportation to the United States serves absolutely no practical purpose
in the present case, particularly given the outstanding applications for
sponsorship in the family class and for permanent residence. In short, I cannot
permit an innocent young child to be severely prejudiced by countenancing his
deportation in circumstances that make no sense. I also see no purpose in
separating the female applicant from her child.
[52]
Similar to Jmakina, there is a pending permanent residence
application under the sponsorship/H&C class which will be rendered nugatory
if this motion for stay of the removal order is denied. Therefore, it stands to
reason that the removal order be stayed pending the final determination of the
Applicant’s permanent residence application.
[53]
Moreover, Justice Frederick Gibson held in Harry
v. Canada (Minister of Citizenship and Immigration), [2000] FCJ No. 1727 (QL), that there is irreparable harm in
depriving the applicant and his family with a “relatively secure life in Canada…”
and sending them to an uncertain future in another country:
[17] … The applicants and their
child have a relatively secure life in Canada for the time being. On the evidence
before me, their future in Trinidad is uncertain at best, both economically
and socially. Such uncertainty represents irreparable harm for the young child,
as would leaving her in Canada without the care and attention of either
of her parents.
[54]
Irreparable
harm has clearly been found where the best interest of a child have not been
assessed prior to removal from Canada. (Iskander v. Canada
(Minister of Citizenship and Immigration), 2002 FCT 235, [2002] F.C.J. No.
308 (QL); Vaseekaran v. Canada (Minister of Citizenship and
Immigration), 2004 FC 913, [2004] F.C.J. No.
1117 (QL); Dennis v. Canada (Minister of Citizenship and
Immigration), 2004 FC 196, [2004] F.C.J. No.
223 (QL).)
[55]
In this case,
the Applicant has repeatedly said that he cannot possibly leave his family
behind since they are fully dependent on him for their existence. Owing to the
special circumstances of the family (i.e. no citizenship in other countries
than Canada, no real connection in the country of removal, as well as the
absence of adequate support for a child with special needs, among others), the
uncertain future and irreparable harm they will suffer are more than just the
“mere inconvenience” and “usual consequences of deportation” cited in the case
of Tesoro, above, and which resulted in the denial of a request to stay
a removal order.
[56]
As the
Applicant’s wife is ill and unable to work, and they have two very young
Canadian children who need constant care and attention, and that one of these
children is suffering from developmental challenges, all of which constitutes
crucial factors in weighing the extent of irreparable harm to be suffered by
the Applicant’s family.
[57]
Irreparable
harm has been established in this case. Irreparable harm is the following:
(a) The
children’s best interests will not be assessed prior to removal and, as such,
the rights of the child under the Convention on the Rights of the Child
as confirmed in the case of Baker, above, will be breached. The breach
of a fundamental human right constitutes irreparable harm.
(b) The
children’s best interests will not be assessed prior to removal and, as such
the grounds for the Applicant’s receiving favourable consideration of his
permanent residence application based on the spousal sponsorship / H&C
application is significantly undermined. The effect is to deprive the
Applicant substantially of all the benefit of his application. This also
constitutes irreparable harm.
BALANCE OF
CONVENIENCE
[58]
The Court is
satisfied that a serious issue and irreparable harm are made out, and that the
balance of convenience favours the Applicant. This proposition was clearly
stated in the case of Membreno-Garcia v. Canada (Minister of Employment and
Immigration), [1992] 3 FC 306, [1992] F.C.J. No. 535 (QL), where Justice Barbara
Reed concluded that once the Applicant had made out an arguable case of
irreparable harm, the balance of convenience would be with the Applicant.
[59]
When considering
whether or not to grant a stay, the Court considered the dicta in Turbo
Resources Ltd. v. Petro Canada Inc., [1989] 24 CPR (3d) 1 (FCA), [1989]
F.C.J. No. 14 (QL), where Justice Arthur Stone stated that:
… where other factors appear to be evenly
balanced it is a counsel of prudence to take such measures as are calculated to
preserve the status quo...
JUDGMENT
THIS COURT ORDERS that the
stay of the Applicant’s removal from Canada be granted until the Spouse or
Common Law Partner in Canada class application and the H&C
application are both finally determined.
“Michel M.J. Shore”
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