Date: 19980807
Docket: IMM-337-98
BETWEEN:
JORGE ALBERTO PORTILLO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
RICHARD A.C.J.:
[1] In this motion the applicant seeks a stay of a deportation order, scheduling his removal to El Salvador on August 10, 1997, pending the determination of three applications for leave for judicial review. In IMM-3453-98, he seeks leave and judicial review of a decision by the Minister of Citizenship and Immigration Canada (the Minister), dated June 23, 1998, wherein the Minister determined that applicant constitutes a danger to the public pursuant to subsection 70(5) of the Immigration Act. In IMM-337-98, he seeks leave and judicial review of a decision communicated to him orally on January 14, 1998, by the Minister to remove the applicant from Canada. In IMM-3737-98, he seeks leave and judicial review of a decision by a removals officer, dated July 9, 1998 to remove the applicant from Canada on August 10, 1998.
[2] The applicant was born in El Salvador in 1954, and is a citizen of that country. He was landed in Canada on January 26, 1984 as a CR1 (Convention refugee) pursuant to an immigration visa issued by the Canadian Embassy in Mexico.
[3] Between September 30, 1988, and January 30, 1998, the applicant was convicted of the following offences:
1988-09-30 Poss of a weapon Susp sent probation
Sec 85 CC for 1 yr & prohibited
from poss firearms,
ammunition or
explosives for 5 yrs
1998-01-30 Assault CBH 7 days
Sec 245.1(1)(B)CC
[4] As a result of these convictions, Citizenship and Immigration Canada (CIC) issued a report under section 27 of the Immigration Act. By letter, dated April 17, 1989, the CIC advised the applicant that it was decided not to refer the matter to inquiry, but warned him that if he once again violated the provisions of the Immigration Act, he may be directed to an inquiry which could result in his removal.
| [5] Between March 15, 1991, and March 16, 1993 the applicant was convicted of the following offences: |
1991-03-15 Poss of narcotic $200 1-D 5 days
Sec 3(1) NC Act
1991-07-08 (1) Poss of narcotic $100 1-D 4 days
Sec 3(1) NC Act
(2) Poss of narcotic $300 1-D 12
Sec 3(1) NC Act days consec
(3)Fail to comply with 14 days conc &
recognizance probation 1 yr
Sec 145(3) CC
1991-11-18 Fail to comply with 7 days
probation order
Sec 740(1) CC
1992-04-08 Poss of Narcotic 7 days
Sec 3(1) NC Act
1992-08-07 Obstruct peace officer 1 day
1992-11-25 (1) Fail to comply with (1-2) Time served
probation order
Sec 740(1) CC
(2) Poss of Narcotic
Sec 3(1) NC Act
(3) Trafficking in a 1 mo
narcotic
Sec 4(1) NC Act
(4) Trafficking in a 2 mos consec &
narcotic probation for 1 yr
Sec 4(1) NC Act
1993-03-16 Trafficking in a 45 days & probation 18
narcotic mos
Sec 4(1) NC Act
[6] On May 20, a second report under section 27 of the Act was issued, alleging that the applicant was a permanent resident described in paragraph 27(1)(d)(ii) of the Act, in that he was a person convicted of an offence for which a term of imprisonment of five years or more may be imposed.
[7] The matter was referred for inquiry. On August 23, 1993 a deportation order was issued against the applicant pursuant to paragraph 27(1)(d)(ii) of the Act.
[8] On August 23, 1993, the applicant filed a notice of appeal of the deportation order with the Immigration Appeal Division of the Immigration and Refugee Board (IAD). By a decision dated July 29, 1994, the IAD dismissed the applicant's appeal.
[9] On January 20, 1994, the applicant was found eligible to have his refugee claim determined by the Convention Refugee Determination Division (CRDD). By a decision dated June 28, 1995, the CRDD determined that the applicant was not a Convention Refugee. The CRDD concluded that the applicant did not have a reasonable possibility of persecution in El Salvador, and that he was excluded from the definition Convention refugee pursuant to Articles 1(F)(b) and (c) of the Convention.
[10] The applicant received a decision, dated December 18, 1995, that he was not a member of the Post Determination Refugee Claimants in Canada class (PDRCC).
[11] On July 4, 1996, the applicant was convicted of the following criminal offence:
1996-07-04 Poss of narcotic $500 1-D days
3(1) NC Act
[12] On May 20, 1997, CIC served the applicant with a notice of intention to seek the opinion of the Minister pursuant to paragraph 53(1)(d) of the Act that the applicant was a danger to the public in Canada.
[13] On January 14, 1998, the applicant was arrested for removal from Canada. He was released on terms and conditions the next day, on January 15, 1998.
[14] Leave to commence an application for judicial review was granted in IMM-337-98 on August 4, 1998.
[15] Also on January 28, 1998, the applicant filed a motion seeking to reopen his appeal before the IAD, which appeal had been dismissed on July 29, 1994. His motion to reopen was granted on April 3, 1998.
[16] On February 2, 1998, the applicant was charged with assault contrary to section 266 of the Code. This charge is still pending before the courts.
[17] By letter dated February 16, 1998, the applicant was advised of the intention to seek the opinion of the Minister pursuant to subsection 70(5) of the Act.
[18] On March 10, 1998, the applicant was charged with assault with a weapon contrary to paragraph 267(a) of the Code. This charge is still pending before the courts.
[19] In response to objections from the applicant, CIC amended the notice of intention to seek an opinion under subsection 70(5) and re-served the applicant on April 23, 1998. Counsel for the applicant provided submissions on the matter on May 19, 1988.
[20] On June 23, 1998, the Minister's delegate determined that the applicant constitutes a danger to the public in Canada pursuant to subsection 70(5) of the Act. The applicant seeks leave and judicial review of this decision in Court File. No. IMM-3453-98.
[21] On July 9, 1998 the applicant was served by the CIC with a document informing him that he is to be removed from Canada on August 10, 1998. The applicant seeks leave and judicial review of this decision in Court File. No. IMM-3737-98.
[22] On July 15, 1998 the applicant's counsel forwarded submissions to the IAD arguing that the IAD had not lost jurisdiction to consider his appeal in respect to the subsection 70(5) opinion rendered against him.
[23] On July 21, 1998, the applicant failed to report for his removal interview as scheduled. Again, on July 28, 1998, he failed to report under the terms and conditions of his release on January 15, 1998. He did, however, report on July 29, 1998.
[24] Since 1993 the applicant was involved in a common-law relationship with a Canadian citizen, with whom he has had two children. Maya Davina Portillo (Maya) was born May 30, 1996, and Sophanna Issac Portillo (Emilio) was born September 18, 1997.
[25] On March 12, 1997, the Provincial Court of British Columbia ordered that the applicant be awarded custody of Maya, and on November 6, 1997 awarded him sole interim custody of Emilio.
[26] On October 30, 1997, the Provincial Court of British Columbia ordered that Emilio reside in the care of a Ministry home and that the applicant have reasonable access to the child. On January 29, 1998 this order was extended for six months. The order was extended for an additional three months on July 30, 1998. The applicant is said to visit Emilio approximately twice a week.
[27] The applicant is currently not in custody. He has been living with his daughter, Maya, since his release from custody on January 15, 1998.
[28] In view of the leave granted by Gibson J. on August 24, 1998, of the application for judicial review in IMM-337-98, the respondent conceded that there was a serious issue to be tried. Counsel for both parties therefore restricted their submissions to the issues of irreparable harm and balance of convenience.
[29] On the issue of irreparable harm, the applicant submitted that he faces a serious risk of torture or execution by the death squads if he was returned to El Salvador. However, he provided no evidence which would support this assertion, nor did he speak to the CRDD's conclusion that he did not face a reasonable risk of persecution in El Salvador.
[30] The applicant's primary argument on irreparable harm was that his family will be irrevocably divided if he is deported. He maintains that, although he has sole custody of Maya and Emilio, he will not be able to take either of them with him to El Salvador. The applicant tendered the letter of Jake Malone, a social worker at the Ministry for Children and Families of British Columbia (the Ministry), dated March 17, 1998, which states that, if the applicant is deported, Emilio would be required to remain in the care of the Ministry indefinitely with a plan that he would one day be placed for adoption. The letter also states that the Ministry would require a safety plan for Maya, which it would have to approve before Maya was permitted to accompany the applicant to El Salvador.
[31] The law is divided on whether the disruption of a family, without more, constitutes irreparable harm for the purposes of granting a stay of removal from Canada. In Duve v. M.C.I., [1996] F.C.J. No. 387 [Q.L.] (F.C.T.D.), Mr Justice McKeown expressed the view that the disruption of the family not does not, alone, constitute irreparable harm, for reasons as follows at para [4]:
| I agree with Simpson J. when she interprets irreparable harm in Calderon v. Canada (Minister of Citizenship and Immigration) (1995), 92 F.T.R. 107 (F.C.T.D.), as follows: |
| In Kerrut v. Minister of Employment and Immigration (1992), 53 F.T.R. 93 (F.C.T.D.), Mr. Justice MacKay concluded that, for the purposes of a stay application, irreparable harm implies the serious likelihood of jeopardy to the applicant's life or safety. This is a very strict test and I accept its premise that irreparable harm must be very grave and more than the unfortunate hardship associated with the breakup or relocation of a family. |
| In this case, the evidence went to the unfortunate hardship associated with the probable breakup of the applicant's family should the applicant be deported, but there is no evidence of jeopardy to the applicant's life or safety should he be returned to Fiji. |
| Thus, there is no irreparable harm of the nature required to justify a stay of the execution of a deportation order. |
[32] The view expressed by McKeown J. has not been shared in other cases including Calabrese v. M.C.I., [1996] F.C.J. No. 723 [Q.L.] (F.C.T.D.) in which Mr. Justice Gibson held that the loss of community support for the applicant Calabrese's rehabilitation would constitute irreparable harm. In Al Yamani v. Canada (1994), 27 Imm. L.R. (2d) 116 (F.C.T.D.), Mr. Justice MacKay found that the applicant, who supported his wife and child, and whose child had severe medical problems, would suffer irreparable harm if the stay was not granted. See also: Toth v. M.E.I. (1988), 6 Imm. L.R. (2d) (F.C.A.) per Heald J.A.; Muncan v. Canada (M.C.I), [1998] F.C.J. No. 248 [Q.L.] (F.C.T.D.) per Campbell J.; Ponnampalan v. M.C.I. (1995) 30 Imm. L.R. (2d) 178 (F.C.T.D.) per Muldoon J.
[33] On the evidence of the case at bar, there are several circumstances which the applicant did not satisfactorily address. The respondent filed the affidavit of Marc Towaij, a removals officer with the CIC in Vancouver. He deposed that after reviewing the contents of Mr. Malone's affidavit, he forwarded it to Jaime Martinez, Clinical Supervisor of the Child Protection Family Services Office, Ministry of Child, Family and Community Services, who is Mr. Malone's direct supervisor. After reviewing the contents of Mr. Malone's affidavit and discussing them with his direct supervisor and network manager, Jaime Martinez advised at para 28(a) of the Towaij affidavit:
| (a) without making any statement respecting the veracity of the contents of the [Malone] affidavit, this is something that Jake Malone did without consultation, without direction or confirmation from Mr. Martinez as Mr. Malone's direct supervisor, or other Ministry officials, and certainly none of them would have authorized it. The affidavit should not be construed as supported by the Ministry. |
[34] The respondent asserts that the opinion of Mr. Malone as to what actions the Ministry will take in respect to Maya and Emilio if the applicant is deported, is therefore unreliable.
[35] The respondent also contended that the applicant has options as to his custody of Maya if he is deported to El Salvador. Mr. Martinez advised at paras 28(g) and (h):
| (g) [...] if the applicant is removed to El Salvador, Emilio would likely become a continuing custody ward of the Ministry and various possibilities for permanent care would be explored. The first option would be to place Emilio with family members, which could include the Applicant, either in Canada or in El Salvador. If this is not appropriate, then the Minister would look at placing Emilio for adoption or placing him in permanent foster care; |
| (h) [...] if the applicant is removed from Canada, the Ministry will remove Maya from the applicant's custody under clause 30 pursuant to s. 13 of the CF & CSA. The Ministry would then look at whether there is a safety plan in place such that Maya could safely live with the applicant in El Salvador. This would include consultation with social services in El Salvador. If this is not feasible, then the Ministry would explore the possibility of placing Maya with the other family members either in Canada or in El Salvador. Placement with family (which includes the applicant) is the first option. Other possibilities would include foster care and potentially adoption. |
[36] If the applicant is deported to El Salvador, he will thus have a number of options in respect to both children. His removal will not, in this sense, automatically cause an irrevocable division of his family. If he is sent El Salvador, the children will likely be in the care of the Ministry, which is already the case with Emilio.
[37] The applicant has not established that irreparable harm will flow from his deportation in respect to the division of his family.
[38] The applicant made a secondary submission that, if he is deported, the IAD will lose jurisdiction to entertain his appeal, and he will on this account suffer irreparable harm. He alleges he will lose the right to appeal on the basis that, once he is deported, the IAD will no longer have jurisdiction to reopen his appeal: M.C.I. v. Binns, [1996] F.C.J. No. 1470 [QL] (F.C.T.D.); Ramkisson v. M.M.I. (1997), 82 D.L.R. 406 (F.C.A.). However, the respondent argued that the IAD no longer has jurisdiction to hear the applicant's appeal once the Minister issued the danger opinion pursuant to paragraph 70(5) of the Act, which provides:
| 70. (5) No appeal may be made to the Appeal Division by a person described in subsection (l) or paragraph 2(a) or (b) against whom a deportation order or conditional deportation order is made where the Minister is of the opinion that the person constitutes a danger to the public in Canada and the person has been determined by an adjudicator to be |
| (a) a member of an inadmissible class described in paragraph 19(l)(c), (c.l), (c.2) or (d); |
| (b) a person described in paragraph 27(l)(a.l); or |
| (c) a person described in paragraph 27(1)(d) who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed. |
[39] The applicant asserts that subsection 70(5) does not apply in his case because the hearing of his appeal commenced before 70(5) came into force.
[40] Subsection 70(5) came into force on July 10, 1995 in virtue of the Act to Amend the Immigration Act, the Citizenship Act and to Make Consequential Amendments to the Customs Act, S.C. 1995, c.15 (the "Amending Act"). Parliament provided for the application of subsection 70(5) in a period of transition, in subsection 13(4) of the Amending Act, which states as follows:
| 13.(4) Subsection 70(5) of the Act, as enacted by subsection (3), applies to an appeal that has been made on or before the coming into force of that subsection and in respect of which the hearing has not been commenced, but a person who has made such an appeal may, within fifteen days after the person had been notified that, in the opinion of the Minister, the person constitutes a danger to the public in Canada, make an application for judicial review under section 82.l of the Act with respect to the deportation order or conditional deportation order referred to in subsection 70(5). |
| * * * |
| 13.(4) Le paragraphe 70(5) de la même loi, édicté par le paragraphe (3), s'applique aux appels interjetés dans le cadre de l'article 70 dont l'audition n'est pas commencée à la date de son entrée en vigueur; cependant, toute personne visée peut, dans les quinze jours suivant la date à laquelle elle est avisée que, selon le ministre, elle constitue un danger pour le public au Canada, présenter une demande de contrôle juriciaire, dans le cadre de l'article 82.l, à l'égard de la mesure de renvoi ou de renvoi conditionnel. |
[41] In Tsang v. Canada (M.C.I.) (1997), 37 Imm.L.R. (2d) 1(F.C.A.), Mr. Justice Marceau considered the question, in regard to the transitional provisions of the Amending Act, whether, when an appeal is made by a sponsor to the IAD, with respect to a sponsoree who is inadmissable under 19(1) of the Act, prior to July 10, 1995, and the hearing has commenced after July 10, 1995, the effect of the Minister issuing a danger to the public opinion is to extinguish the sponsor's right of appeal. Marceau J.A, answered in the affirmative. It is therefore the date when the hearing is commenced, and not the date at which the appeal was filed, which determines whether subsection 70(5) will apply to extinguish a right of appeal.
[42] Therefore, on the basis of Tsang, when a danger opinion is rendered under subsection 70(5), an applicant will lose the right to appeal to the Appeal Division if the appeal hearing has not been commenced before July 10, 1995.
[43] If the applicant was successful in establishing that the hearing of his appeal was commenced prior to July 10, 1995, the IAD will retain full equitable jurisdiction. If he is not successful, then Tang would apply and he would have no right of appeal. In either case, his deportation will not lead to irreparable harm.
[44] I conclude that the applicant has failed to establish irreparable harm in this case.
[45] In these circumstances, and taking into account section 48 of the Act, the balance of convenience favours the respondent.
[46] The motion is therefore dismissed.
____________________________
Associate Chief Justice
Ottawa, Ontario
August 7, 1998