Date: 20030214
Docket: IMM-725-03
IMM-726-03
Neutral citation: 2003 FCT 172
Ottawa, Ontario, this 14th day of February, 2003
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
LEODIGARIO BALBOA HUERTO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is a motion by the applicant for an order granting a stay of his removal from Canada, now scheduled for February 18, 2003, until such time as the applicant's applications for leave and for judicial review are considered and finally determined.
[2] The applicant is a citizen of the Philippines. He arrived in Canada in 1996 and made a Convention refugee claim. This was denied in 2000. He also applied for humanitarian and compassionate ("H & C") consideration. He suffered complete kidney failure just before his interview. His H & C application was denied.
[3] In order to stay alive, the applicant must have kidney dialysis three times a week. According to the applicant, this would cost at least $1,800 per month, as the cost of dialysis is not covered in the Philippines, except in certain excepted cases. This cost would take most of his common law spouse's disposable income.
[4] The applicant has family members in Canada, but they cannot afford to give him money on an on going basis for kidney dialysis in the Philippines.
[5] The applicant, in his second affidavit, stated there was no free service available for him in the Philippines.
[6] The applicant will die if he does not receive dialysis treatment.
Issue
[7] Should the removal of the applicant be stayed?
Analysis and Decision
[8] The applicant must satisfy me of three matters in order to be granted a stay of his removal. He must show that (1) there is a serious issue to be tried; (2) irreparable harm will result to the applicant if the stay is not granted; and (3) the balance of convenience favours the applicant (see Toth v. Canada (Minister of Employment and Immigration), [1988] F.C.J. No. 587 (QL) (C.A.)).
[9] Serious Issue
From a review of the file material, I am satisfied that the applicant has raised serious issues to be tried. These issues are whether or not kidney dialysis would be available to the applicant in the Philippines if he cannot afford to pay for the treatment and whether or not the applicant's rights under the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 are engaged by his scheduled removal to the Philippines.
[10] Irreparable Harm
In my view, the applicant could suffer irreparable harm if he was removed to the Philippines if he could not receive dialysis treatment because he was unable to pay for it. He would die.
[11] Balance of Convenience
The balance of convenience favours the applicant. He is not a threat to the public and the Minister can still carry out the duties under the Act, if need be, after the judicial review applications are determined by the Court.
[12] For the purposes of this motion, I have not taken into account the affidavit of Esther Fiallos or exhibit "A" attached to the affidavit.
[13] The motion for a stay of the removal order is granted until the applicant's leaves for judicial reviews are denied and if leave is granted, then until the application or applications for judicial review are finally dealt with by the Court.
ORDER
[14] IT IS ORDERED that the motion for a stay of the removal order is granted until the
applicant's leaves for judicial reviews are denied and if leave is granted, then until the application or applications for judicial review are finally dealt with by the Court.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
February 14, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-725-03 and IMM-726-03
STYLE OF CAUSE: LEODIGARIO BALBOA HUERTO
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Monday, February 10, 2003
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: Friday, February 14, 2003
APPEARANCES:
Lorne Waldman
FOR APPLICANT
Tamrat Gebeyehu
FOR RESPONDENT
SOLICITORS OF RECORD:
Waldman & Associates
FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
FOR RESPONDENT