BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
INTRODUCTION
[1] By motion filed the 28th of March, 2007, the Applicant sought an interim stay, pursuant to section 18.2 of the Federal Courts Act[1], staying the execution of the removal order outstanding against her pending the final disposition of her application for leave and for judicial review of a decision dated the 1st of February, 2007 denying the Applicant’s application for landing from within Canada based upon humanitarian and compassionate considerations and, in particular, the best interests of her Canadian born daughter who would be directly affected if the Applicant was required to leave Canada or was involuntarily removed from Canada.
[2] Removal of the Applicant to the United States of America was scheduled for the 5th of April, 2007. The Applicant’s motion was heard at Toronto on the afternoon of the 3rd of April, 2007. Immediately following the close of the hearing, an order granting a stay of removal issued.
BACKGROUND
[3] The Applicant is a citizen of Brazil. She and her husband entered Canada on the 9th of February, 1996 and immediately made Convention refugee claims. Because the Applicant and her husband entered Canada without permanent resident visas, they were found to be inadmissible and conditional departure orders were issued against them. The Applicant gave birth in Canada to a daughter on the 5th of August, 1996.
[4] The Convention refugee claims of the Applicant and her husband were denied on the 13th January, 1997. In the result, the conditional departure orders made against them came into force. The Applicant and her husband applied for landing in Canada as members of the Post-Determination Refugee Class in Canada (“PDRCC” class). They applied for employment authorizations pending determination of their PDRCC applications.
[5] The Applicant was granted an employment authorization on the 9th of June, 1997. Her PDRCC application was refused the next day.
[6] The Applicant and her husband failed to report for their scheduled removal from Canada on the 29th of July, 1997. In the result, their departure orders became deportation orders and warrants were issued for their arrest.
[7] On the 16th of October, 2000, the Respondent received from the Applicant and her husband an application for permanent residence in Canada on humanitarian and compassionate (“H & C”) grounds. That application was refused on the 30th of January, 2003.
[8] On the 2nd of January, 2002, the Applicant’s husband was arrested. He was removed from Canada the next day. The Applicant’s husband failed to inform the Respondent of the Applicant’s whereabouts.
[9] The Applicant was sent a Pre-Removal Risk Assessment (“PRRA”) application kit on the 3rd of January, 2003, presumably through counsel who had represented her and her husband on their H & C grounds application. Through counsel, the Applicant submitted her PRRA application on the 24th of January, 2003. The decision on that application, dated the 22nd of September, 2003 found the Applicant not to be at risk of persecution, danger of torture, risk to life or a risk of cruel and unusual punishment or treatment if returned to Brazil. The Respondent’s letter advising the Applicant of the PRRA decision was returned to the Respondent, undelivered, on the 22nd of October, 2003.
[10] On the 10th of October, 2006, the Applicant filed a new application for permanent residence on H & C grounds, through her counsel. The evidence accompanying the Application focused primarily on the establishment of the Applicant and her 11 year old daughter in Canada and thus focused, in part, on the best interests of the Applicant’s daughter. The Applicant and her counsel were well aware of information provided by the Respondent indicating that the processing time for the application would likely be in the range of 19 to 20 months although it could be longer and, impliedly at least, shorter. They would also appear to have been aware that there was no undertaking from the Respondent to give notice to persons such as the Applicant when a decision on the application was imminent. The Court is also prepared to assume that the Applicant and her counsel were well aware that the onus on the application was on the Applicant and that she should therefore “put her best foot forward” by filing, at the earliest opportunity, all of the evidence available to support the application. This notwithstanding, counsel’s letter covering the application included the following brief paragraph:
We request that you notify us 30 days before you are prepared to process this application as we will be making submissions and sending further supporting documents at that time.
[11] To the consternation of the Applicant and her counsel, the Applicant’s H & C application was denied on the 1st of February, 2007 and the Applicant’s counsel was notified on her behalf on the 2nd of February, 2007. The denial decision was taken less than 4 months after the application was filed. During those less than 4 months, the Applicant had been working to put together a package of supplementary evidence to support the application, directed to the issue of the Applicant’s daughter’s intellectual disability, a subject not raised in the October 2006 H & C submissions. Apparently the daughter’s cognitive functioning is limited, she has a limited IQ, a limited reasoning ability and particular difficulties with verbal communication. She apparently has been placed in a “special education class” with “partial integration” into the regular school system. Further, Applicant’s counsel had apparently herself collected evidence on the limited educational opportunities for a person with the daughter’s alleged disabilities in Brazil.
[12] The Respondent provided no notice to the Applicant or her counsel that the decision on the H & C application would be made very much earlier than in the estimated time frame made known in its public information programs.
[13] Only on the 6th of March, 2007 did the Applicant emerge from her location “underground”. She attended on that date at the Greater Toronto Enforcement Centre. She was arrested and detained. She was released the same day, pending removal arrangements being made. Those removal arrangements eventually resulted in the Applicant arranging her own removal to go directly to Brazil, apparently in the company of her daughter.
[14] It is the negative H & C decision made the 1st of February, 2007 that is the subject of the Application for leave and for judicial review that underlies this motion for a stay of removal.
[15] All of the evidence relating to the Applicant’s daughter’s disability and to the impact that removal of the Applicant to Brazil, either in the company of her daughter or leaving her daughter here in Canada, would have on the daughter, is now before the Respondent in a fresh H & C application, the Applicant’s second such application or 3rd such application if the Application that she and her husband made together some years ago is taken into account.
ANALYSIS
[16] It is trite law that in order for the Applicant to succeed on a motion for a order staying his or her removal pending final determination of an Application for leave and for judicial review such as that here before the Court, the burden rests on the Applicant to establish three things: first, that there is a serious issue to be tried on his or her application for leave and for judicial review; second, that unless the stay is granted the Applicant or, as in this case, a child directly affected by the Applicant’s removal, will suffer irreparable harm; and third, that the balance of convenience favours the Applicant rather than the Respondent[2]. Similarly, it is trite law that a stay of removal is an equitable remedy and, as such, it is open to the Court to deny the remedy in circumstances where an applicant does not come to the Court with “clean hands”.
[17] Certainly, on the facts of this matter, the Applicant does not come to the Court with “clean hands”. The Applicant has been evading a deportation order and a warrant for her arrest since the end of July, 1997. That being said, I am loathe to inflict the sins of the mother on the daughter in the circumstances here before the Court and I will therefore turn to a consideration of the tripartite test for a stay of removal based on a somewhat analogous circumstance in which a stay of removal
was granted notwithstanding a lack of “clean hands” on the part of an applicant[3].
[18] As earlier noted in these reasons, the onus on a motion for a stay of removal is on the Applicant and it is incumbent on the Applicant to put his or her best foot forward at the first opportunity. Nonetheless, it is a notorious fact, as earlier noted, acknowledged by the Respondent, that the waiting time following the filing of an application for landing from within Canada on H & C grounds is, much more often than not, many, many months. Where a conflict arises between filing all of the evidence at the time an application is filed, and filing the best evidence, an Applicant is faced with a dilemma. It is not unreasonable then, in such circumstances, to file the evidence immediately available and to pursue with diligence the collection of additional evidence and the collation of that additional evidence with appropriate submissions. It is also a wise course, in such circumstances, to request that the Respondent notify the Applicant of an imminent decision if the imminent decision is to be taken in a time frame completely inconsistent with the Respondent’s own best estimates of the likely time frame.
[19] Against the very low threshold for a serious issue to be tried, I am satisfied that the issue of whether the Respondent, on the relatively unique facts of this case, breached the duty of fairness owed to the Applicant by failing to provide reasonable notice of a relatively imminent decision where the decision, as here, was to be taken in less than 4 months from the date of application, a period of approximately l/5th of the Respondent’s own best estimates of the time from application to decision, is a serious one.
[20] As to the question of irreparable harm, the Applicant does not urge that she herself would suffer irreparable harm through removal to the United States or Brazil, but rather, on the fresh evidence now before the Respondent, that her 11 year old daughter would suffer irreparable harm through loss of access to Ontario’s special education programs for persons with disabilities such as are alleged in her case, and the concomitant alleged lack of equivalent programs in Brazil, undoubtedly the final destination and destination of choice. I am satisfied that, in the absence of thoughtful analysis of the evidence now available to the Respondent on this issue, the best interests of the Applicant’s daughter would simply not be respected if she and her mother, or her mother alone, were removed at this time. Put another way, in the absence of a full assessment, the Applicant’s daughter would suffer irreparable harm.
[21] Finally, on the issue of balance of convenience, there are substantial elements of convenience, or inconvenience, in the Applicant’s and her daughter’s favour. While it is beyond doubt that there is a public interest in the Respondent and the Minister of Public Security and Emergency Preparedness fulfilling at least the latter’s responsibilities under section 48 of the Immigration and Refugee Protection Act, and that that public interest is an element in the balance of convenience in favour of the Respondent, I find that element, on the particular facts of this matter, to be substantially less than the convenience or inconvenience in favour of the Applicant and her daughter.
CONCLUSION
[22] For the foregoing reasons, as earlier indicated, at the close of the hearing of this motion, I issued an order staying the removal of the Applicant from Canada until the application for leave and for judicial review underlying this motion has been finally disposed of.
Ottawa, Ontario.
April 13, 2007.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-677-07
STYLE OF CAUSE: CLEIDINA RODRIGUES LIMA
APPLICANT
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
RESPONDENT
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 3, 2007
REASONS FOR ORDER : GIBSON, J.
APPEARANCES:
Ms. Hilary Evans Cameron FOR THE APPLICANT
Mr. John Provart FOR THE RESPONDENT
SOLICITORS OF RECORD:
VanderVennen Lehrer FOR THE APPLICANT
Barristers and Solicitors
Toronto, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario