Date: 20031003
Docket: IMM-7280-03
Citation: 2003 FC 1153
Ottawa, Ontario, this 3rd day of October, 2003
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
AINSLEY WAYNE SMITH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is a motion for an order to stay the execution of a deportation order issued against the applicant on September 2, 2003. The applicant's removal from Canada is scheduled for October 6, 2003.
[2] The applicant is a Canadian permanent resident who came to Canada in 1987. Due to a series of convictions for criminal offences between 1996 and 1999, the Adjudication Division (now the Immigration Division) conducted an immigration inquiry and issued a deportation order against the applicant on August 4, 2000.
[3] The respondent states in paragraph 4 of the respondent's memorandum of argument:
There are apparently two underlying applications for leave and for judicial review in this case. The first is the decision of the Immigration and Refugee Board, Appeal Division (IAD) dated July 19, 2001, declaring the Applicant's appeal of his deportation order, dated August 4, 2000, to have been abandoned. The second decision under review is the Direction to Report, which was provided to the Applicant on September 2, 2003 by Enforcement Officer Gina Farrauto (the Enforcement Officer) at a pre-removal interview.
[4] A pre-removal risk assessment found the applicant not to be at risk if returned to Jamaica.
[5] Due to address changes, the applicant never received the Immigration and Refugee Board, Appeal Division ("IAD") letter advising him of his hearing date and he did not receive the abandonment decision until August 28, 2003.
[6] Paragraphs 7 and 8 of the respondent's memorandum state:
At the pre-removal interview, the Enforcement Officer informed Applicant's counsel that she should apply to the IAD for reconsideration of the decision to abandon the Applicant's appeal, based on grounds of procedural fairness or principles of natural justice. The Enforcement Officer stated that she would defer removal if the IAD agreed to reopen the hearing. If this were not possible, the removal would proceed as scheduled.
Under the Immigration and Refugee Protection Act (IRPA) only foreign nationals can apply to reopen an appeal on natural justice grounds. As such, the Applicant is precluded from re-opening his abandoned claim. After being informed of this fact, the Enforcement Officer concluded that the removal would proceed as scheduled since any application for leave and for judicial review of the decision to abandon his claim does not provide a statutory stay of his removal. The Enforcement Officer informed Applicant's counsel of this fact.
[7] I was informed at the hearing of the motion that the applicant has himself filed an application for permanent residence in Canada based on humanitarian and compassionate ("H & C") grounds.
[8] The applicant is the father of a three year old Canadian born daughter. The applicant's former wife, the mother of the child, has custody of their daughter.
[9] The applicant was abandoned at the age of 16. He currently works at two full time jobs at two different restaurants. He plans on returning to school to earn his chef's licence, and then to continue to work in the restaurant industry.
[10] The applicant pays child support on a regular basis and his daughter is stated to be emotionally and financially dependent on her father.
[11] The applicant has been free of criminal charges since 1999.
[12] The applicant is married to a Canadian citizen who is in her final year of business at the University of Windsor. His wife intends to become an accountant.
[13] The applicant's wife is supportive of his daughter.
[14] Issue
Should the removal order be stayed?
Analysis and Decision
[15] It is now accepted that a removal officer has some discretion and may in certain circumstances, stay the removal of the applicant (see Wang v. Canada (Minister of Citizenship and Immigration), 2001 FCT 148).
[16] In order to obtain a stay, the applicant must satisfy the requirements set out in Toth v. Canada (Minister of Employment and Immigration), [1988] F.C.J. No. 587 (QL) (C.A.) at page 305:
This Court, as well as other appellate courts have adopted the test for an interim injunction enunciated by the House of Lords in American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396. As stated by Kerans J.A. in the Black case supra:
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.
The applicant must meet all three branches of the tri-partite test set out in Toth, supra, for a stay to be granted.
[17] Serious Issue
I am satisfied that a serious issue has been raised and that issue is whether a removal
order should have issued, based on the facts of this case.
[18] Irreparable Harm
I am also of the view that the applicant would suffer irreparable harm if he were returned to Jamaica based on the facts of this particular case. He has been crime-free since 1999, he would lose his two full time jobs, and the support of his wife. As well, he would lose the ability to support his three year old daughter.
[19] Balance of Convenience
The balance of convenience favours the applicant. There is no evidence that he is a threat to the public and the Minister can still remove him from Canada if his application for leave or for judicial review is not successful.
[20] The removal order issued against the applicant is stayed until the applicant's application for leave for judicial review is denied. If leave for judicial review is granted, then the removal order is stayed until the application for judicial review is dealt with finally by the Court.
ORDER
[21] IT IS ORDERED that the removal order issued against the applicant is stayed until the applicant's application for leave for judicial review is denied. If leave for judicial review is granted, then the removal order is stayed until the application for judicial review is dealt with finally by the Court
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
October 3, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7280-03
STYLE OF CAUSE: AINSLEY WAYNE SMITH
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: Thursday, October 2, 2003
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: Friday, October 3, 2003
APPEARANCES:
Sandra Saccucci Zaher
FOR APPLICANT
Marina Karvellas
FOR RESPONDENT
SOLICITORS OF RECORD:
Sandra Saccucci Zaher
Windsor, Ontario
FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario
FOR RESPONDENT