Date: 19980122 Docket: IMM-127-97
BETWEEN:
CHRISTINE ST. CLAIR DAVIS
Applicant
-and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Let the attached certified transcript of my Reasons for Order delivered orally from the Bench at Toronto, Ontario, on November 26, 1997, be filed to comply with S. 51 of the Federal Court Act.
« James A. Jerome »
IN THE FEDERAL COURT OF CANADA TRIAL DIVISION
CHRISTINE ST. CLAIR DAVIS
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent
HELD BEFORE: The Associate Chief Justice, Jerome
HELD AT: 330 University Avenue, 9th Floor Courtroom 7
Toronto, Ontario
REPORTER: Elizabeth Tsombanakis,
REGISTRAR: Garnet Morgan
HELD ON: November 26, 1997
REASONS FOR JUDGMENT
PAMILA BHARDWAJ, MS. for the Applicant
KEVIN LUNNEY, ESQ. for the Respondent
EXCERPT
Court File No. IMM-127-97
INDEX OF PROCEEDINGS
PAGE NUMBER
Reasons by:
Associate Chief Justice Jerome 1 - 4
- 1 - Reasons
REASONS:
HIS LORDSHIP: I won't be calling on counsel for the Crown, Ms. Bhardwaj. This application cannot succeed, and here are my Reasons.
You have made a very able submission, and a very elegant plea on behalf of a person who might have succeeded if she was in the situation even of an ordinary applicant. If we were assessing a visa application for someone to come to Canada many of your arguments would carry weight.
However, this applicant is, of course, seeking not just the exception that goes to refugees or immigrants that can appeal to the Immigration Board. She is even removed from that process by two realities. The first is that, of course, she is seeking the exceptional relief of Section 114, and that means that, by its very terms, she doesn't qualify to make her application from within Canada, and the jurisprudence makes it clear that, as that Section 114 states, it does not create rights in the applicant of any sort.
It is exceptional relief that is extra consideration by Canada of those applicants who have not been successful in any other respect.
The second Reason, that her position
- 2 - Reasons
militates against her success here today, of course, is that she has criminal inadmissibility, and whatever. It isn't, therefore, simply one where there is a kind of even balance in the exercise of discretion here.
Many cases are ones where the applicant, without breaking Canadian laws, comes before the Minister, and says, "Look, I haven't been successful, but I have a number of humanitarian and compassionate considerations here," and we know that the applicant in that kind of even balanced situation is also entitled to make separate written representations, at least, to the Minister to say that, "You ought, despite my failure on the other aspects of my application, here are the Reasons why I should be let in on humanitarian and compassionate grounds," and here the criminal inadmissibility intervenes to put your applicant at a greater disadvantage even than the kind of person to whom I have just referred.
Therefore, on balance, many of the standards of consideration that you sought to bring to the assistance of this applicant simply don't apply.
Finally, the choice about coming here with
- 3 - Reasons
the children, going home with the children, going home to Jamaica, has also been considered in earlier cases in our court, and the choice becomes one of the applicant and her family and her dependents. I` is, therefore, not a hardship, particularly in this case.
I was not being cynical in the slightest when I said to you that, "I mean, this poor woman got herself into this abusive situation with the husband," probably because of her immigration status. I suppose that he took advantage of her vulnerability, but whether he did or not, to some extent, one of the results of this is that she will certainly be removed from him, forever, let's hope.
In any case, your plea would have had application were those circumstances different, but they aren't, and therefore, I have to dismiss the application for judicial review, and I will await the transcription just of my Reasons, and edit them and file them pursuant to section 51 of the Federal Court Act, or I may do other brief Reasons based on them, and the endorsement today will be for Reasons given orally, the application is dismissed, brief written Reasons to follow. Thank you.
MR. LUNNEY: Thank you, My Lord.
- 4 - Reasons
HIS LORDSHIP: And the next case will start at 11:15.
MS. BHARDWAJ: May I put a question forward for certification?
HIS LORDSHIP: You can certainly try. It is my practice to leave that to the parties once they have read the brief Reasons.
MS. BHARDWAJ: Okay, that is fine.
HIS LORDSHIP: I will certainly safeguard that for you.
MS. BHARDWAJ: Thank you, My Lord.
Upon adjourning at 10:58 a.m.
I hereby certify the foregoing to be a true and accurate transcription of the above noted proceedings held before me on the 26th DAY OF NOVEMBER, 1997 and taken to the best of my skill, ability and understanding.
Certified Correct:
Elizabeth Tsombanakis
Certified Verbatim Reporter
360-6117
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-127-97
STYLE OF CAUSE: CHRISTINE ST. CLAIR DAVIS v MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 26, 1997
REASONS FOR ORDER OF THE ASSOCIATE CHIEF JUSTICE
DATED: January 22, 1998
APPEARANCES
Ms. Pamila Bhardwaj FOR THE APPLICANT
Mr. Kevin Lunney FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Bhardwaj Pohani Law Office FOR THE APPLICANT
Toronto, Ontario
Mr. George Thomson FOR THE RESPONDENT
Deputy Attorney General of Canada
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