Date: 20081205
Docket: IMM-5258-08
Citation: 2008 FC 1353
Ottawa, Ontario, this 5th day
of December 2008
Present: The Honourable Orville
Frenette
BETWEEN:
Milena
URBANCZYK
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY
PREPAREDNESS
Respondent
AMENDED REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This
is a motion seeking a stay of removal of the applicant to Poland, scheduled
for December 5, 2008 at 10:45 p.m.
[2]
The
applicant, a Polish national, came to Canada on July 5, 2001 with a
visitor’s visa valid until January 5, 2002. The visa was not renewed and on May
23, 2002, a departure order was issued against her.
[3]
The
applicant made an application for refugee status in 2002 but later, the Refugee
Protection Division decided it was deemed to be abandoned.
[4]
In
2002, the applicant met Joaquin Diazgranados, a Columbian, who became her
common-law partner. On January 5, 2005, she was arrested for giving a false
address and an unresponsive cell phone number.
[5]
On
May 31, 2005, the applicant’s Pre-Removal Risk Assessment (“PRRA”) application
received a negative decision. She and her partner presented applications for
permanent residence on Humanitarian and Compassionate (“H&C”) grounds, in
which she was sponsored by her partner. These applications were dismissed because
Mr. Diazgranados was deemed inadmissible because of a standing warrant in the United
States
in a pending criminal charge, i.e. sexual assault.
[6]
Mr.
Diazgranados communicated with his U.S. lawyer to attempt to
resolve this problem on September 18, 2008.
[7]
The
applicant made a new H&C application. On November 19, 2008; she requested
the Canadian Border Services Agency to defer her removal until such time as the
H&C application had been processed. In the alternative, she requested a
60-day delay to allow time to resolve the matter in the U.S.
[8]
The
removal officer, in his decision of December 3, 2008, analyzed the reasons or
issues advanced by the applicant to support a deferral of the removal order:
1.
The
applicant requested the deferral until the decision on her recent H&C
application. She alleged she was not involved with the event which caused her
partner and herself to lose the first H&C application. She alleged any long
separation from Mr. Diazgranados could lead to an eventual break-up.
2.
The
applicant raised the fact that she is suffering from a major depressive
disorder; she is under medical care and medication. The threat of removal
causes her additional stress and anxiety.
[9]
The
officer considered these factors but concluded they did not justify a deferral
request.
[10]
A
tripartite conjunctive test for a stay of removal was elaborated in Toth v.
Minister of Employment and Immigration (1988), 86 N.R. 302 (F.C.A.). The
case law considers a stay as an extraordinary remedy for which the applicant
must demonstrate “special and compelling circumstances, to warrant exceptional
judicial intervention” (Shchelkanov v. Minister of Employment and
Immigration, 76 F.T.R. 151; Minister of Citizenship and Immigration et
al. v. Harkat, 2006 FCA 215, at paragraph 10). According to Toth, supra,
the conditions for a stay are as follows:
1.
There
is a serious issue to be tried;
2.
Irreparable
harm will be caused if the stay is not granted; and
3.
The
balance of convenience favours the granting of the stay.
[11]
These
conditions must be considered in the context of the very limited discretion a
removal officer possesses under section 48 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the “Act”) (Simoes v. Minister of
Citizenship and Immigration, 187 F.T.R. 219, at paragraph 12; Wang v.
Canada (M.C.I.), [2001] 3 F.C. 682, at paragraph 45; Baron v. Minister
of Public Safety and Emergency Preparedness, 2008 FC 341; Pacia v.
Minister of Citizenship and Immigration, 2008 FC 804).
[12]
The
threshold to determine a serious issue is usually described in case law as “not
frivolous and vexatious”. However, a literal meaning of the word “serious”
requires a more elevated threshold. Justice Pelletier in Wang v. Minister of
Citizenship and Immigration, [2001] 3 F.C. 682, at paragraph 11, noted that
the serious issue is not frivolous and vexatious, but rather the “likelihood of
success”.
[13]
The
applicant alleges serious issues:
1.
The
applicant is the innocent victim in that her first H&C application was
refused because of her partner’s criminal charge in the U.S., which is
alleged to have occurred before she met him.
2.
If
she is sent back to Poland, this will separate her from her partner for
several years before the agency processes her H&C application.
3.
She
suffers from major depression, controlled by medication but these last events
accentuated her anxiety and stress.
[14]
The
respondent answers:
1.
The
separation of a couple is a usual result of a removal.
2.
Anxiety
and depression are usual consequences of deportation. There is no evidence that
medical services and medication are not available in Poland to treat
this illness (Palka v. Minister of Public Safety and Emergency Preparedness,
2008 FCA 165).
3.
The
existence of an outstanding H&C application alone is not, in itself,
sufficient support to stay a deportation order (Simoes, supra, at
paragraph 13; Barrera v. Minister of Citizenship and Immigration, 2003
FCT 779).
[15]
If
one examines individually these issues, he or she could conclude they do not
meet the test of “seriousness” but cumulatively I believe they do meet the
criteria.
[16]
The
applicant repeats that after a six-year relationship with her partner, many
years of separation may cause irreparable harm. The applicant quoted case law
which supports her view (Hwang v. Minister of Citizenship and Immigration,
226 F.T.R. 318). A few exceptional cases authorized stays pending the
processing of applications for leave and judicial review (Kahn v. Minister
of Public Safety and Emergency Preparedness, 2005 FC 1107; Kowlessar v.
Minister of Public Safety and Emergency Preparedness (October 30, 2008), IMM-4631-08).
[17]
The
applicant invokes also her severe depression which is aggravated by the threat
of removal and the removal.
[18]
There
is credible evidence in the record that the removal will cause irreparable harm
to the applicant.
[19]
Although
the balance of convenience does not automatically flow from a finding of
serious issue and irreparable harm, these factors cannot be ignored. There must
be a balance between the respondent’s obligation to execute removal orders as
soon as practicable in accordance with subsection 48(2) of the Act, and the
applicant’s interest.
[20]
In
this case, the applicant poses no danger to the public or to the security of Canada. She has
been in Canada for seven years;
she is employed and suffers from a serious illness. I believe the balance of
convenience is in her favour (Singh v. Minister of Citizenship and
Immigration, 104 F.T.R. 35).
[21]
The
conditions of the test having been met, this motion will be granted.
JUDGMENT
The
Court orders a stay of the execution of the deportation order against the
applicant pending the determination for leave and judicial review of the
refusal of deferral of the removal order.
“Orville
Frenette”
Email this Content