Date: 20000529
Docket: IMM-2539-00
BETWEEN:
SAMUEL J. RAMIREZ-PEREZ
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKay J.
[1] These reasons confirm those rendered orally, after consideration of submissions by the parties by telephone conference on May 19, 2000, when I dismissed the applicant"s application for an interim order of prohibition or for an interim stay prohibiting removal of Mr. Ramirez-Perez from Canada, scheduled for May 23, 2000, pending determination of an application for leave and for judicial review filed and served on May 17, 2000.
[2] The latter application seeks review of a decision by an immigration officer rendered May 11, 2000 by which the applicant"s application for exemption from requirements of s-s. 9(1) of the Immigration Act was denied. The letter advising the applicant of that refusal was delivered to the applicant on May 12, together with a Direction to report to Pearson Airport for removal from Canada early in the morning of May 23.
[3] The applicant is a citizen of Guatemala. He arrived in Canada in 1989 and claimed refugee status. That claim was denied in March 1992 by the CRDD panel which concluded that he was excluded from refugee status under Article 1F(A) of the Refugee Convention as one who had committed crimes against humanity while he was serving as a member of Guatemala"s police services. He was reported as one considered to be in an inadmissible class in regard to admission to Canada pursuant to paragraphs 27(2)(a) and 19(1)(j) of the Act . The latter provision precludes admission to Canada of
| persons who there are reasonable grounds to believe have committed an act or omission outside Canada that constituted a war crime or a crime against humanity within the meaning of subsection 7(3.76) of the Criminal Code and that, if it had been committed in Canada, would have constituted an offence against the laws of Canada in force at the time of the act or omission. |
[4] Before that decision, the applicant had met and in 1990 had married a permanent resident who later became a Canadian citizen. A daughter was born to the marriage in 1991.
[5] After the marriage his wife submitted an application to sponsor Mr. Ramirez-Perez as an applicant for permanent residence. His application was granted approval in principle, subject to his meeting statutory requirements.
[6] Before consideration of that application was completed its processing was stopped because the applicant had earlier been convicted of an offence, said to be a driving offence to which he had pleaded guilty. He was then told by immigration authorities that he could submit a new application for permanent residence if he received a pardon. He did receive a pardon in October 1996.
[7] In January 1997 he was advised he could submit a new application for permanent residence but in February 1997 he was summoned to report for an inquiry under the Immigration Act. At the conclusion of the inquiry, which appears to have been based upon the applicant"s own testimony in 1990-92 before the CRDD, the Adjudicator, by his decision rendered on May 29, 1997, found the testimony of the applicant not credible, either at his CRDD hearing or before him, and in the absence of any other evidence Mr. Ramirez-Perez was found not to be a person described in paragraphs 27(2)(a) and 19(1)(j) of the Act . Those provisions define a person as inadmissible to Canada if there are reasonable grounds to believe that person has committed an act or omission outside Canada that constituted a war crime or a crime against humanity, as defined in the Act.
[8] The Minister applied for leave and for judicial review of the adjudicator"s decision but the application for leave was dismissed on October 11, 1997.
[9] The applicant says that both he and his then counsel were advised a new application for permanent residence was not required. Subsequently, he learned a new application was required when immigration officers considered steps for his removal. He and his wife were able, however, to submit a further inland spousal sponsorship application on November 8, 1999. In that application, among other matters, the circumstances of the applicant"s family are briefly set out, including his wife"s full time employment at a gross salary of some $2,800. a month and the applicant"s contribution to the family"s finances, albeit minimal, from his own cleaning business, and the circumstances of the children of the family, i.e. the mother"s son now 17 years of age, and the daughter of the marriage now eight years old, for both of whom the applicant has been a caring father. These circumstances are set out to emphasise the harm to the family and their relationships that would result from forced removal of the applicant from Canada. The applicant"s application for inland spousal sponsorship was sent by his immigration counsellor to the Case Processing Centre at Vegreville, Alberta. The applicant was not interviewed at any time about his application.
[10] On April 4, 2000 his immigration counsellor was advised that the application had been referred for consideration of humanitarian and compassionate grounds to the Regional War Crimes Unit in Mississauga, and further, that the adjudicator"s decision in 1997 that the applicant was not a person described in paragraph 19(1)(j) of the Act , was not a binding decision in the consideration of Mr. Ramirez-Perez"s application. When the counsellor expressed concern about the process, she was advised by the officer concerned that the latter"s task was to consider humanitarian and compassionate concerns, not to reconsider a report in relation to paragraph 19(1)(j).
[11] The decision of the officer concerned, a delegate of the Minister, was conveyed by letter dated May 11, 2000. That letter advised that after consideration of the circumstances of his request for exemption from ss. 9(1) of the Act, requiring the obtaining of an immigrant visa prior to arrival in Canada, which exemption depends upon humanitarian and compassionate circumstances, it was decided an exemption would not be granted. Further the letter advised that an outstanding removal order "must now be executed".
[12] Reasons for that decision were provided to the applicant"s counsellor on May 15, 2000. Notice to report for removal on May 23, was delivered to the applicant, as mentioned earlier, on May 12, 2000.
[13] An application for leave and for judicial review of the decision was filed on May 17, 2000, and the following day this application for a stay, pending determination of the application for leave and judicial review, was filed.
Findings of the Court
[14] After consideration of the written and oral submissions of counsel for the parties the Court concluded as follows:
| 1. The applicant has raised at least one serious issue for consideration of the Court by his application for leave and for judicial review, as supported at this stage by the affidavit evidence filed in support of the application for a stay. Without seeking to pre-determine the outcome of the application for leave, the following issues are raised and appear to be arguable issues, of serious import for the applicant, in light of the conflicting views of counsel at this stage: |
| a) whether the officer"s decision properly ignored the decision of the adjudicator in 1997, while accepting the decision of the CRDD panel in 1992 on essentially the same matter. In her decision she concludes, after lengthy review of the determinations of the CRDD panel and the Adjudicator, that she is not convinced that the applicant is not described in paragraph 19(1)(j) of the Immigration Act and thus could not meet requirements for immigrants under the Act. There may be some question whether that finding is relevant to the issues before the officer concerned if, as she earlier indicated to the applicant's counsellor, her task was to assess h. and c. considerations. |
| b) whether, in light of Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, the immigration officer gave sufficient attention to the humanitarian and compassionate circumstances in this case, in particular the best interests of the children of the family. In this regard the reasons of the officer consider that the applicant is married to a Canadian citizen and they have one Canadian born child and a son of the applicant"s wife, and that if the applicant is required to leave Canada, "the children will still have their mother in Canada for their care and support". |
| 2. There is no basis to find irreparable harm, despite the obvious difficulties which will result, for the applicant and for his family, from his removal from Canada. Counsel for the applicant argues that these difficulties will indeed be irreparable by the time that may be required to deal with his application for leave and for judicial review, perhaps a year. In my view that time will depend upon counsel for both parties in preparing for the matter to be considered for leave, and if it be granted, for the application to be heard. The latter arrangement, for hearing if leave be granted, in my opinion can be expedited by the Court. If the application is successful the matter would then be referred for reconsideration by an immigration officer. |
| It is my opinion that hearing of the application for judicial review, if leave be granted, can be dealt with in a matter of months. In these circumstances, I am not satisfied, on the evidence, that the relationships between the applicant and his wife, and between him and his children, and the financial circumstances of the family will be irreparably harmed in the interim before disposition of the application for leave and for judicial review. |
| 3. In the absence of a finding of irreparable harm to the applicant, the balance of convenience lies with refusing a stay, so that the Minister, if she determines to remove the applicant from Canada as planned when this matter was heard, may proceed at that time to meet her statutory responsibilities. |
Conclusion
[15] In sum, I found that the requirements for a stay of the removal order are not established on the evidence before me.
[16] For this reason an oral order, now confirmed in writing, dismissed the applicant"s application for a stay.
[17] That said, in my opinion this case demonstrates significant inconsistency on the part of the Immigration Department in dealing with Mr. Ramirez-Perez over the years. He has apparently held employment authorizations over the years, his wife"s first application to sponsor him for landing in Canada was approved in principle in 1993 despite the CRDD panel decision in 1992 that he was not a convention refugee on grounds that would have precluded his admission from abroad. Those grounds were later found not to be established at an inquiry by an adjudicator in 1997. He has then been permitted to submit a further sponsorship application. When that is finally considered in April and May of this year, by a Regional War Crimes Unit, a decision is rendered which, relying on the 1992 CRDD decision and ignoring the decision of the adjudicator in 1997, indicates the decision maker is not convinced he is not one prohibited from entry from abroad under paragraph 19(1)(j) as if the onus were on the applicant to establish, without any notice to him, that this is to be a matter for reconsideration and that the onus is on him to prove he is not within that paragraph. Then with a negative decision he is advised on May 12 to report for removal from Canada, 11 days later.
[18] These considerations led me to comment in concluding remarks at the telephone hearing that the Respondent Minister"s representative might even yet reconsider the date scheduled for the applicant"s removal, thus avoiding creation of difficulties and possibilities of required welfare support at this stage for the family, if the applicant were permitted to stay pending disposition of his application for leave and for judicial review.
[19] If that were not to be done I urged that counsel for the Minister advise his client that in my view the circumstances of this case warrant serious consideration by the Minister of arrangements to permit the applicant, if he is now removed from Canada, to return to rejoin his family, even with a visitor"s visa, if leave should be granted for his application now before the Court, so that pending consideration of the merits of the application for judicial review, the family"s enforced separation would not be continued unless it is subsequently found either that his application for judicial review is not allowed, or if allowed, that reconsideration does not recognize his claim to exemption from Immigration Act requirements to obtain an immigrant visa abroad.
[20] Finally, I direct the Registry to flag this file for my attention when the application for leave and judicial review is ready for consideration so that I may seek to expedite the matter if leave is to be granted.
(signed) W. Andrew MacKay
___________________________
JUDGE
OTTAWA, Ontario
May 29, 2000.