Date: 19991029 Docket: IMM-5190-99
BETWEEN:
SVETLANA JMAKINA, MAXIM JMAKIN, THROUGH HIS LITIGATION GUARDIAN SVETLANA JMAKINA
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
McGILLIS J.
INTRODUCTION
[1] On October 27, 1999, I heard on an urgent basis by teleconference the applicants' motion to stay the execution of the removal order. Given the pending deportation of the applicants to Buffalo, New York early the next day, I rendered my decision at the conclusion of the hearing, signed an Order staying the execution of the removal order, and indicated to counsel that written reasons in support of my Order would be provided at the earliest available opportunity.
Page: 2
FACTS
[2] The applicants are citizens of Kazakhstan who entered Canada by way of the United States on May 13, 1994. The female applicant is the mother of the dependent child applicant who is presently six years of age. Immediately upon their arrival in Canada, the applicants claimed Convention refugee status. Under subsection 28(1) of the Immigration Act, R.S.C. 1985, c. I-2 as amended, a senior immigration officer made a conditional departure order against the applicants.
[3] On April 19, 1995, the Immigration and Refugee Board ("Board") determined that the applicants were not Convention refugees. In its decision, the Board found that the female applicant was not a credible witness. The conditional departure order therefore became effective by virtue of subsection 28(2) of the Immigration Act.
[4] The applicants filed an application for leave and for judicial review challenging the decision of the Board. On September 22, 1995, this Court dismissed the application for leave.
[5] On December 13, 1995, an immigration officer conducted a review following the rejection of the refugee claim and determined that the applicants were not members of the Post Determination Refugee Claimants in Canada class ("PDRCC"). In other words, the immigration officer determined that the applicants would not suffer an objectively
Page: 3
identifiable risk to their lives, extreme sanctions or inhumane treatment upon deportation to Kazakhstan.
[6] On January 31, 1996, the applicants failed to report for removal to the United States and shortly thereafter a warrant was issued for their arrest. On March 31, 1996, the arrest warrant was executed. By virtue of paragraphs 52(2)(a), (c) and (d) of the Immigration Act, the Department of Citizenship and Immigration ("Department") was entitled to remove the applicants, respectively, to the country from which they came to Canada, namely the United States, or to the country of which they are nationals or citizens, or to the country of their birth, namely Kazakhstan.
[7] In May 1996, the applicants were deported to Buffalo, New York, and remained there until September 1996, a period of slightly over three months. While in the United States, the applicants stayed at a refugee centre called VIVE La Casa. The child applicant became very ill during his stay at the refugee centre and generally found it to be a very traumatic experience for many reasons.
[8] In September 1996, the applicants returned to Canada and, at the border, claimed Convention refugee status for the second time. By virtue of paragraph 46.01(1)(c) and subsection 46.01(5) of the Immigration Act, the applicants were entitled to make a claim for refugee status due to the fact that they went to another country and returned to
Page: 4
Canada after being absent for over 90 days. A senior immigration officer issued a conditional departure order against the applicants.
[9] Following their return to Canada, the child applicant began to have recurring nightmares and sleeping problems. He also developed behavioural problems. Prior to his stay at VIVE La Casa, the child applicant had not experienced any of these difficulties. As a result, he was treated by a psychiatrist.
[10] In November 1998, the Board rejected the applicants' second claim for refugee status on the basis that the evidence of the female applicant was not credible or trustworthy. The conditional departure order therefore became effective by virtue of subsection 28(2) of the Immigration Act. The applicants challenged the Board's decision by filing an application for leave and for judicial review in this Court.
[11] On March 26, 1999, the female applicant married a Canadian citizen. Her husband was born in Montr6al in 1968. He is a hard working man who has a full-time job. He also works on a part-time basis providing assistance to a disabled person.
[12] On May 20, 1999, the female applicant's husband filed an application to sponsor the applicants for landing in Canada as members of the family class.
Page: 5 [13] On June 15, 1999, this Court dismissed the application for leave in relation to the second unmeritorious refugee claim.
[14] In July 1999, the applicants made an application for permanent residence in Canada and requested, under subsection 114(2) of the Immigration Act, to be exempted from the normal requirements for landing for humanitarian and compassionate reasons, based on the spousal sponsorship.
[15] On September 14, 1999, an immigration officer conducted a post-refugee claim review and determined that the applicants were not members of the PDRCC class. In other words, it was determined, for a second time, that the applicants would not be subjected to an objectively identifiable risk to their lives, extreme sanctions or inhumane treatment by reason of their deportation to Kazakhstan.
[16] On September 16, 1999, an immigration enforcement officer directed the applicants to leave Canada voluntarily within 30 days or to report on October 28, 1999 for removal from Canada to the United States.
[17] By letter dated October 1, 1999, the former counsel for the applicants requested that the enforcement unit of the Department extend the removal date for two months
Page: 6 pending a determination of the application to sponsor them for landing in Canada as members of the family class.
[18] By letters dated October 8 and 14, 1999, counsel for the applicants reiterated the request to the Department to defer the removal of the applicants to the United States pending a determination of the sponsorship application.
[19] By letter dated October 20, 1999, counsel again requested that the Department
defer removal of the applicants pending the determination of the sponsorship application
for reasons primarily related to the best interests of the child. In his letter, counsel for
the applicants described the "bad experiences" of the child applicant during his last stay
at VIVE La Casa, as a result of the close quarters and the various illnesses he caught
while there. He also noted that the removal of the applicants to the United States would
be only "temporary", and that they would have the right to return to Canada after 90
days. Finally, he emphasized the disruption that removal would cause to the child
applicant's school year. In that regard, he stated as follows:
In addition to that, I would ask you to also take into consideration that Maxim is presently attending school in grade one. He enjoys going to his school and he will suffer a set back if he is removed to the United States since he will miss school, potentially, for one year. Given that he and his mother have the right to come back to Canada after 90 days, and more importantly that their application for landing through a spousal sponsorship is in process and is being considered by Etobicoke, it is submitted that their removal, especially that of Maxim, will not achieve anything positive. Their removal will only be temporary and, in the interim, the best interests of Maxim, as a child, will be detrimentally affected.
Page: 7 [20] By facsimile dated October 22, 1999, an enforcement officer refused to defer the removal of the applicants to the United States on the basis that the Immigration Act "...requires that a removal order be carried out as expeditiously as possible". In short, she found "...no compelling reasons to make an exception in this case".
[21] On October 24, 1999, the applicants filed an application for leave and for judicial review challenging the decision of the enforcement officer refusing to defer the removal of the applicants pending a determination of the application for sponsorship and the application for permanent residence.
[22] On October 25, 1999, the applicants filed a motion to stay their removal to the United States.
[23] In support of the application to stay the removal order, counsel for the applicant
filed, among other things, an affidavit from the female applicant's husband, Louis
George, as well as an affidavit from the female applicant. In his affidavit, Mr. George
expressed his concerns that the removal of the child applicant to the United States would
have the following negative consequences:
5. I love Svetlana and Maxim very much and we love and trust each other greatly. We are very upset that Canada Immigration is trying to remove them to the United States. I am devastated to think that they have to go. This will cause a rift and will cause a great deal of hardship to our family, particularly for Maxim. I am very sad that we will be torn apart, because we love each other so much. Maxim trusts me and I am doing the
Page: 8
best to be a good father to him. We spend a lot of time together and Maxim will be terrified without me for the amount of time that they will be forced to spend in the United States. This forced separation from me will traumatize him once again, since he has had bad experiences with his father in the past. As a consequence, it was very difficult to gain Maxim's trust and confidence in me and I am deeply afraid that if he goes to the United States for some time, I will lose his trust and confidence in me, that was so difficult to gain.
6. Furthermore, I am also very concerned about breaking Maxim's schooling. He has entered grade one this year and leaving will interrupt his education. All of this will cause a set back and instability for our family, especially for Maxim.
7. I am, furthermore, employed full-time at Carrot Common Corp. During weekdays, from Mondays through Thursdays, my position is that of maintenance; and on weekends, i.e. Fridays and Saturdays, my position is that of parking lot supervisor at the Carrot Common Corp. I am also employed, on a call basis and on a fixed schedule, with a disabled individual by the name of Scott McArthur, who has cerebral palsy. I am scheduled to work with Mr. McArthur every Tuesday and Wednesday and every second Thursday in the evenings. I am also on call every day of the week, including Saturdays and Sundays. My duties with this individual are to drive him around and to do everyday tasks for him. I am very often asked to come on weekends to see him, which will include Sundays. Therefore, I will not be in the position to go visit my wife and Maxim to Buffalo, since I will be either working or be on call seven days a week.
[24] In her affidavit, the female applicant stated, among other things, that the child
applicant has expressed "fear" of returning to VIVE La Casa. She is concerned that the child applicant will develop, once again, recurring nightmares and sleep problems.
[25] The applications for sponsorship and for permanent residence based on humanitarian and compassionate considerations have been referred to the local immigration office for processing. However, the Department has not yet made any decisions on those applications.
Page: 9
ISSUE
[26] The question to be determined is whether the execution of the removal order ought to be stayed.
ANALYSIS
[27] In order to succeed on this motion, the applicants must establish that the application for leave and for judicial review raises a serious issue to be tried, that their removal to the United States will cause them irreparable harm, and that the balance of convenience lies in their favour. Prior to considering those factors, I wish to place the applicants' motion in its proper factual context.
[28] A review of the facts in this matter reveals that the applicants have made two unsuccessful refugee claims and two unsuccessful applications to this Court for leave and for judicial review of the negative decisions made by the Board on their refugee claims. Immigration officers have determined, on two separate occasions, that the applicants were not members of the PDRCC class and would not face risk, extreme sanctions or inhumane treatment upon their deportation to Kazakhstan. The applicants were able to access the refugee determination system, with all of its attendant protections, on the second occasion due to the fact that they were deported to the United States after their first unsuccessful round. In other words, due to their deportation to the United States in 1996, the applicants had no difficulty exercising their right under section 46.01 of the
Page: 10 Immigration Act to return to Canada after 90 days in order to make their second unmeritorious refugee claim. As indicated previously, that second refugee claim in turn gave rise to other unsuccessful legal and administrative proceedings. In the meantime, having by now spent several years in Canada, the female applicant married a Canadian citizen who has applied to sponsor her and the child applicant for landing in Canada as members of the family class. The applicants have also made an application for permanent residence based on humanitarian and compassionate relief. Those two applications are outstanding and are awaiting determination. However, the conditional departure order, issued at the time the second refugee claim was made, became effective following the dismissal of that claim. The Department chose to execute that departure order at this time by removing the applicants to the United States. Needless to say, following any such removal, the applicants would be entitled, following another 90 day sojourn at VIVE La Casa in Buffalo, New York, to return to Canada and to make yet another refugee claim.
[29] It is patently clear and obvious that the deportation of the applicants to the United States is a useless and counterproductive exercise that will result in the applicants filing a further futile claim for refugee status. Rather than engaging in this charade of deporting the applicants to the United States for a second time and implicitly condoning the making of revolving door refugee claims, the Department should simply make decisions on the outstanding applications for family class sponsorship and for permanent
Page: 11 residence. In making its decisions on those applications, the Department will be required to determine whether the female applicant's marriage to a Canadian citizen is legitimate, or whether it was entered into for the purpose of circumventing our immigration laws. In the event that the Department determines the marriage to be legitimate, the applicants would likely be permitted to remain in Canada as members of the family class. However, in the event that the Department refuses the applications for sponsorship and for permanent residence on the basis that the marriage was entered into for the purpose of circumventing our immigration laws, the applicants should be deported to their country of origin, namely Kazakhstan, at the appropriate time, in order to avoid further expense to the Canadian taxpayer. The revolving door approach to refugee claims casts a dark shadow over our immigration system, places an unnecessary burden on Canadian taxpayers, delays the hearing of meritorious refugee claims and constitutes a scandalous abuse of our border.
[30] Having placed this matter in its proper context, the three criteria for granting a stay of execution of a removal order must be considered.
[31] Counsel for the applicant submitted, among other things, that the enforcement officer made a perverse decision in refusing to defer the execution of the removal order for a short period of time in order to permit other departmental officials to make decisions on the outstanding applications for sponsorship and for permanent residence. I
Page: 12 am satisfied, on the basis of the evidence adduced on the motion, that there is a serious issue to be tried in that respect.
[32] Counsel for the applicant further submitted that the child applicant would suffer irreparable harm by reason of his deportation to the United States. I agree with that submission. The evidence in the record establishes that the needs and interests of the child applicant would be severely and adversely affected, particularly in relation to his schooling, his psychological well-being and his relationship with his stepfather, by the disruption caused in his life as a result of his deportation to the United States. In reaching this conclusion, I have considered that the deportation to the United States serves absolutely no practical purpose in the present case, particularly given the outstanding applications for sponsorship in the family class and for permanent residence. In short, I cannot permit an innocent young child to be severely prejudiced by countenancing his deportation in circumstances that make no sense. I also see no purpose in separating the female applicant from her child.
[33] Given my conclusion that there is a serious issue to be tried and that the child applicant would suffer irreparable harm by reason of his deportation to the United States, I have concluded that the balance of convenience lies in favour of the applicants.
Page: 13
DECISION
[34] As indicated in the Order that I signed at the end of the teleconference, the motion for a stay of the execution of the removal order is granted.
D. McGillis
JUDGE
OTTAWA, ONTARIO October 29, 1999
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-5190-99
STYLE OF CAUSE: SVETLANA JMAKINA AND OTHERS v. MCI
PLACE OF HEARING: OTTAWA VIA TELECONFERENCE WITH TORONTO
DATE OF HEARING: OCTOBER 27, 1999
REASONS FOR ORDER OF THE HONOURABLE MADAME JUSTICE MCGILLIS DATED: OCTOBER 29, 1999
APPEARANCES:
Mr. Lorne Waldman FOR THE APPLICANT
Mr. Stephen Gold FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Lorne Waldman FOR THE APPLICANT Toronto, Ontario
Mr. Morris Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada