Date: 19991104
Docket: IMM-4441-99
BETWEEN:
JOSE MAURICIO JIMENEZ
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
(Heard by telephone conference on November 1, 1999,
at 2:00 p.m., in Ottawa, Ontario)
BLAIS J.
[1] The applicant seeks a stay of the execution of a deportation order which has been issued against him.
[2] The applicant has filed an application for leave and for judicial review of a decision of the case management branch - case review, made on November 25, 1998 in respect of a humanitarian and compassionate review, which was communicated to the applicant on August 26, 1999.
[3] The Minister issued the applicant, a direction dated October 6, 1999, to report for removal from Canada on November 2, 1999.
[4] Nevertheless, the applicant signed an affidavit on October 21, 1999 and filed this motion for a stay only on October 28, 1999 asking for a telephone conference on November 1, 1999.
[5] This Court has to consider now whether the applicant meets the three criteria for a stay.
[6] The applicant suggests that he has an arguable case because of the lack of written reasons. The applicant bases his arguments on the recent case in Baker v. Canada (M.C.I.), [1999] S.C.J. No. 39.
[7] The applicant submits that he had no access to the written notes of the reviewing officer and had no knowledge of a report dated October 22, 1998 from Dr Esquevel, designated immigration physician, and Dr Celina Miranda of the Association Funda Sida.
[8] The fact that he had no knowledge or access to the report relied upon by the reviewing officer constitutes an arguable case.
[9] The applicant suggests that should he be deported, he would not have access to the medication he is taking now, and pursuant to the last update on his medical condition, he could "experience rapid clinical decline and early death".
[10] That constitutes an irreparable harm if he is deported to El Salvador.
[11] Given that he could die early if he could not have access to the medication he is taking now, the balance of convenience favours the applicant.
[12] The respondent suggests that if there was a lack of written reasons communicated to the applicant, it was remedied, because the written reasons were communicated to him today and the applicant is aware of the reasons why the decision was made.
[13] The respondent also suggests that the applicant waited at the very last minute to bring this motion before the Court.
[14] The respondent also relies on Bertram v. Canada, [1999] F.C.J. No. 1362, in which Justice Cullen decided that on the risk assessment process, the officer could rely on documents that were not communicated to the applicant.
[15] The respondent suggests that the applicant failed to demonstrate an arguable case.
[16] On irreparable harm, the respondent suggests that the applicant was notified in July and in August again, that he would be removed soon and that he should have made arrangements for his departure from Canada.
[17] Relying on the written notes of the reviewing officer, the medication that the applicant needs on a daily basis are available in El Salvador and the Court may conclude that the applicant will not suffer irreparable harm if he is deported to El Salvador.
[18] Concerning the balance of convenience, the respondent suggests that the applicant was convicted of a crime in Canada and also many convictions in the United States, which convictions were not mentioned by the applicant and were discovered later on by the respondent.
[19] The respondent also mentioned that the applicant is on welfare and constitutes a burden for taxpayers, and also that he receives medication free of charge.
[20] The respondent concluded by saying that the Minister has a duty to execute deporting order as soon as possible, pursuant to the law.
ANALYSIS
Serious Issue
[21] The reviewing officer R. Bérubé, relied upon a report dated October 22, 1998 from Dr Esquivel, designated immigration physician, and Dr Celina Miranda of the Association Funda Sida. This report relates to the availability and accessibility of treatment for people with AIDS in El Salvador.
[22] The report constitutes extrinsic evidence that was not communicated to the applicant to get his comments, given that the information is in contradiction with other documents already filed by the applicant.
[23] That constitutes a serious issue that will have to be addressed by the Court in regard to the application for leave of the decision made by the case management branch on November 25, 1998.
Irreparable Harm
[24] Will the applicant suffer an irreparable harm if he is deported to El Salvador?
[25] Given that the Court has no information but the contradictory evidence regarding the availability of the medication in El Salvador stemming from extrinsic evidence, and given the grave consequence the lack of medication will have on the applicant, I believe that the applicant could suffer irreparable harm if he is deported to El Salvador.
Balance of Convenience
[26] Regarding the balance of convenience based on the last update on the medical condition of the applicant submitted by Janet Gilmore, M.D., Director of the HIV Care Program, Assistant Professor at the University of Western Ontario, on September 24, 1999, the applicant would experience rapid clinical decline and early death if the applicant"s access to medical care and specifically antiretroviral therapy and treatment for his opportunistic illnesses are compromised.
[27] For those reasons, this application for stay is granted and the deportation order is stayed pending disposition of his application for leave and judicial review.
Pierre Blais
Judge
OTTAWA, ONTARIO
November 4, 1999