Date: 20031030
Docket: IMM-7770-03
Citation: 2003 FC 1271
BETWEEN:
LEACROFT ANTONIO LEWIS
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] The applicant seeks a stay of the removal order issued against him in October 2000. Its execution was delayed as the applicant was then in prison. He was paroled in April 2003. On September 12, 2003 the Minister's Delegate dismissed the applicant's Pre-Removal Risk Assessment ("PRRA"). An application for leave and for judicial review of that decision is currently pending.
[2] Despite the very able arguments put forth on the applicant's behalf, I am not satisfied that a stay of the removal order would be justified in the present case.
[3] The applicant, Leacroft Antonio Lewis, is 27 years of age. He immigrated to Canada in 1990 when he was 13, sponsored by his mother. His mother, step-father and several siblings are Canadian citizens, and he is currently a permanent resident of Canada.
[4] The applicant's difficulty is that he was convicted in 1998 of six charges of robbery and attempted robbery for which he was sentenced to seven years' imprisonment. In February 2000 the Minister's Delegate issued an opinion pursuant to section 70(5) of the former Immigration Act, (R.S.C. 1985, c.I-2, as amended) that the applicant constituted a danger to the public in Canada and deportation was ordered that October. In January 2001, the Immigration Appeal Division dismissed his appeal of that order, and in July 2001, the Federal Court Trial Division dismissed his application for leave and judicial review thereof.
[5] There is a wealth of jurisprudence dealing with the stay of execution of removal orders. Reference is usually made to the tripartite test for interim injunctions as applied in the immigration context in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.). The applicant must show that (1) there is a serious issue in the underlining application, (in this case the application for leave and for judicial review of the negative pre-removal risk assessment); (2) that he would suffer irreparable harm if the stay was not granted; and (3) that the balance of convenience is in his favour.
[6] With respect to the serious issue the Minister's Delegate said, amongst other things, that:
Mr. Lewis failed to indicate ... whether or not he actually had access to [his] children. Mr. Lewis also has not provided any specifics with respect to future contacts with the children. It is my opinion that Mr. Lewis has failed to demonstrate that there are any humanitarian factors present in his case which would warrant favourable consideration.
[7] It was argued quite strenuously that these conclusions flew in the face of the uncontradicted evidence of the applicant, his common-law partner, Mary Valdez, and Ms. Valdez' friend, Bonnie Pinder.
[8] Even if I were to hold that the applicant met the threshold necessary on this point, I am not satisfied that the Minister's Delegate was wrong in concluding that no irreparable harm would come to the applicant in that he is not in need of protection. Much of his subjective fear is grounded in a drug deal gone bad. He admits to stealing drugs from a Jamaican posse in Edmonton, and actually went into hiding for some months thereafter. His concerns are highly speculative. There is no evidence that his removal to Jamaica will cause him irreparable harm.
[9] It is quite true that the removal may cause some difficulty in his relationship with his children, particularly his son with Ms. Valdez, and may put a strain on their conjugal relationship. It will also be stressful for the applicant to return to the land of his birth considering that he has spent more than half his life in Canada. However, these issues are inherent to and arise naturally from a removal order. The irreparable harm must be more than a normal consequence (Celis v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1231, (Pinard J.) and Kerrutt v. Canada (Minister of Employment and Immigration) (1992), 53 F.T.R. 93, (MacKay J.)).
[10] The application for leave and for judicial review of the negative PRRA is not before me. That application continues whether or not the applicant is in Canada. If it is set aside in a judicial review the applicant is entitled to return to Canada at the expense of the Minister, (s. 52(2) of the Immigration and Refugee Protection Act, S.C. 2001, c.27 ("IRPA")).
[11] Furthermore, in his affidavit in support of the stay application, the applicant states that he is in the process of beginning a Humanitarian and Compassionate application, as well as a sponsorship application through his fiancée. An application based on humanitarian and compassionate considerations, pursuant to s. 25 of the IRPA, is distinct from an application for leave and for judicial review of a PRRA and can be pursued while he is in Jamaica.
[12] For these reasons, the application is dismissed.
"Sean Harrington"
JUDGE
Ottawa, Ontario
October 30, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7770-03
STYLE OF CAUSE: LEACROFT ANTONIO LEWIS
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: OTTAWA, ONTARIO and EDMONTON, ALBERTA
DATE OF HEARING: OCTOBER 27, 2003
REASONS FOR ORDER : HARRINGTON J.
DATED: OCTOBER 30, 2003
APPEARANCES:
Mr. Michael J. Mussieux FOR APPLICANT
Mr. Rick Garvin FOR RESPONDENT
SOLICITORS OF RECORD:
Kevin E. Moore Law Office FOR APPLICANT
2nd Floor, 10701-108 Street,
Edmonton, AB, T5H 3A3
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Ottawa, ON