Date: 20000517
Docket: IMM-2465-00
BETWEEN:
MARCUS FABIAN EMMANUEL
Applicant
-and-
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
DAWSON J.
[1] On June 6th, 1997 a deportation order was issued against Marcus Fabian Emmanuel. This order was issued pursuant to subsection 32(2) of the Immigration Act R.S.C. 1985, c.I-2, as amended ("the Act") on the ground that the Adjudication Division of the Immigration and Refugee Board had found Mr. Emmanuel to be a person described in subsection 27(1)(d)(i) of the Act . In this case, Mr. Emmanuel was a person convicted of offences under the Criminal Code for which a term of imprisonment of more than 6 months had been imposed.
[2] Mr. Emmanuel filed an appeal from that decision to the Appeal Division of the Immigration and Refugee Board. On September 10th, 1997 the Appeal Division declared the appeal to be abandoned.
[3] No application for judicial review was taken from that decision although I will comment later on a related, but untimely, application.
[4] A further report under subsection 27 (2) of the Act was made in respect of Mr. Emmanuel on April 26th, 2000. This report resulted from further convictions.
[5] On May 3rd, 2000, a direction to report issued advising Mr. Emmanuel that his removal from Canada had been scheduled for May 18th, 2000.
[6] Mr. Emmanuel now has filed an application for leave and for judicial review to quash the direction to report for removal and in the interim seeks an order staying the direction to report for removal.
[7] I have concluded that no stay should be granted and these are my reasons for dismissing the motion.
[8] The test for the granting of a stay is well established. It requires an applicant to establish:
| (i) a serious issue to be tried in the underlying application; |
| (ii) irreparable harm if the stay is not granted; |
| (iii) the balance of convenience favours granting the stay. |
[1] In the present case, the applicant argued before me that a serious question is raised because he alleges that his mother sponsored his landing in Canada in 1990 so that he could care for her and that she simply "cannot survive physically for long without the applicant".
[2] The applicant says this raises a serious question as to whether the principles articulated by the Supreme Court of Canada in Baker v. Canada, [1999] 2 S.C.R. 817 apply. No argument was pursued at the hearing of the motion before me as to the existence of any other serious issue.
[3] For a serious issue to be established, the issue must arise out of the underlying application and an evidentiary basis must exist to support it.
[4] Here, the underlying application seeks to quash a direction to report for removal, not the deportation order. A serious issue as to the applicability of Baker does not, in my view, arise out of the issuance of a direction to report in this circumstance.
[5] In view of the date of the deportation order, the applicant is not assisted around that impediment by advising that he will "re-file a new humanitarian and compassionate application."
[6] A further application was filed on the applicant"s behalf out of time seeking leave, judicial review and an extension of time for the bringing of that application. The application was filed by the applicant acting on his own behalf on April 25th , 2000. It seeks to challenge the June 6, 1997 decision of the Adjudication Division finding Mr. Emmanuel to be a person described in subsection 27 (1) (d) (i) of the Act.
[7] The application has not been served, nor has any record been filed to perfect the application. Counsel for the applicant was unaware of its existence until he learned of it in the course of the hearing when its existence was properly, and commendably, disclosed by counsel for the Minister.
[8] The April 25th, 2000 application is unsupported by any affidavit. In the body of the notice of application it is asserted that the applicant hired a lawyer to take care of the case but the "lawyer disappeared and the applicant does not know his whereabouts. The applicant is therefore asking for extension of time".
[9] I am not prepared to place any reliance upon this unserved application brought almost three years after the fact in circumstances where an appeal from the decision it seeks to impugn was declared to be abandoned.
[10] As to the evidentiary basis to support this motion for a stay, the applicant swore in his affidavit that:
| My elderly and sickly mother sponsored me here in 1990. I have been living with my mother since I came here in 1990. My mother is very sickly and depends on my assistance in numerous ways. She will suffer irreparable harm if I were to leave Canada. My mother suffers extreme high blood pressure and has had two surgeries. She literally depends on me to take care of her every need. |
| That although I live with my mother, along with my common-law wife with her two children, my mother solely depends on me as I am the closest to her, for obvious reasons. One of the reasons my mother sponsored me was for me to take care of her. I am her only child in Canada. My only sister lives in St. Lucia. |
[11] In a further affidavit which I allowed to be filed at the hearing of the motion the applicant swore:
| That I am the only caregiver my mother can relate to and no other for obvious reasons. One of the reasons my mother sponsored me was for me to take care of her. I am her only child in Canada. My only sister lives in St.. Lucia. |
[12] I place no weight on the applicant"s bare assertion of what is a question of mixed law and fact that his mother will suffer irreparable harm. I find the balance of the applicant"s evidence lacking in the type of specificity which would support his sweeping statement that his mother "literally depends on me to take care of her every need".
[13] No affidavit was filed by the applicant"s the mother, although the late filed affidavit did exhibit a letter which the applicant identified as being from his mother. It is undated, brief and I set it out in full:
| To Whom I[t] May Concern |
| This letter is to inform you that in 1993 and 1995, I had two major surgery [sic]. |
| Since those surgeries I have been having problems with my health. |
[14] I find this does not support the conclusions contained in the plaintiff"s affidavit. I draw an adverse inference from the provision of this tepid, limited, evidence that supporting evidence from the applicant"s mother, the person best able to give that evidence, was not available.
[15] This evidence is in my view insufficient to support the applicant"s argument that, as a matter of law, Baker should be extended. I make no comment on the merits, or otherwise, of the applicant"s legal argument.
[16] Thus while the threshold is a low one I am not satisfied that the applicant has established a serious issue. On this evidence the applicant also failed to persuade me that he had established irreparable harm or that the balance of convenience favoured granting the stay.
[17] In the result the application for a stay is dismissed.
"Eleanor R. Dawson"
J.F.C.C.
Toronto, Ontario
May 17, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-2465-00 |
| STYLE OF CAUSE: MARCUS FABIAN EMMANUEL |
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| DATE OF HEARING: TUESDAY, MAY 15, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY DAWSON J. |
| DATED: WEDNESDAY, MAY 17, 2000 |
| APPEARANCES BY: Mr. Munyonzwe Hamalengwa |
For the Applicant
Ms. Leena Jaakkimainen
For the Respondent
SOLICITORS OF RECORD: Mr. Munyonzwe Hamalengwa
Barrister and Solicitor
45 Sheppard Avenue East
Suite 900
Toronto, Ontario
M2N 5W9
For the Applicant
Ms. Leena Jaakkimainen
The Department of Justice
First Canadian Place
130 King St. West, Suite 2400
Toronto, Ontario
M5X 1K6
For the Respondent
FEDERAL COURT OF CANADA
Date: 20000517
Docket: IMM-2465-00
Between:
| MARCUS FABIAN EMMANUEL |
| - and - |
| THE MINISTER OF CITIZENSHIP AND |
| IMMIGRATION |
| REASONS FOR ORDER |