Date: 20010226
Docket: IMM-561-01
Neutral citation: 2001 FCT 120
BETWEEN:
MARIA NAZAROVA
Plaintiff
AND:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
ORDER AND REASONS FOR ORDER
BLAIS J.
[1] This is a motion to stay the removal of the plaintiff from Canada, which was scheduled for 5:40 p.m. on Monday, February 26, 2001.
[2] The parties submitted written arguments and extensive precedents.
[3] In order to succeed, the plaintiff had to show that there was a serious issue to be tried, that she could suffer irreparable harm if she was deported to Russia and that the balance of convenience was in her favour.
[4] Counsel for the plaintiff summarized the serious issue as follows: should the plaintiff be penalized because of the defendant's negligence? The negligence referred to was the failure to comply with the reciprocity arrangement between Canada and the U.S.
[5] The plaintiff argued, and very skilfully, that she had acquired a legitimate expectation of being deported to the U.S. under the reciprocity arrangement and that the negligence of the immigration officer in failing to make the application within the required time would result in her deportation to Russia.
[6] The defendant, for her part, suggested that s. 52 of the Act is clear and that the Minister has broad discretion as to the country to which a plaintiff will be deported.
[7] The defendant further submitted that this reciprocity agreement is not legislation and imposes a mutual obligation in the cases mentioned on certain conditions. In the case of a person subject to a deportation order, it is the Act which applies, not the reciprocity arrangement.
[8] I have to say at this stage that I agree with the argument made by the defendant and that, if it creates rights, the reciprocity agreement does so between the two parties, the Government of Canada and the Government of the U.S., and does not in any way alter the obligations arising out of s. 52 of the Act.
[9] I therefore conclude that the plaintiff has not established that there was a serious issue to be tried.
[10] On the second point, that of irreparable harm, I have to say that the letter from Dr. Bertha Fucusman filed as Exhibit R-1 is not very persuasive medical evidence of the plaintiff's situation.
[11] Reading this letter from Dr. Fucusman does not in any way indicate to me that the removal of the plaintiff to Russia could threaten her life and safety. This is especially true as the defendant has also shown that in connection with the initial application pursuant to s. 114(2) on humanitarian grounds, the immigration officer who dealt with the application specifically examined the question of the state of health and risks associated with return alleged by the plaintiff on account of her physical condition. That officer examined not only Dr. Fucusman's letter but also letters from two other physicians, and it appeared that the heart problem which she found in Canada had been dealt with by surgery and she no longer needed anything but cardiological follow-up, and that the anxiety problem had been reassessed in January 2000, everything was under control and no specific treatment was required except cardiological follow-up.
[12] I cannot conclude that the evidence submitted by the plaintiff was persuasive regarding the absence of adequate care if she returned to Russia.
[13] The plaintiff has therefore not succeeded in persuading the Court that she would suffer irreparable harm if she was deported to Russia.
[14] In conclusion, I have no hesitation in finding that in the circumstances the balance of convenience is in the Minister's favour.
[15] For all these reasons, the motion to stay the removal order is dismissed.
Pierre Blais
Judge
Montréal, Quebec
February 26, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20010226
Docket: IMM-561-01
BETWEEN:
MARIA NAZAROVA
Plaintiff
AND:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
ORDER AND REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE: IMM-561-01
STYLE OF CAUSE: MARIA NAZAROVA
Plaintiff
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 26, 2001
ORDER AND REASONS
FOR ORDER BY: BLAIS J.
DATED: February 26, 2001
APPEARANCES:
Lucrèce M. Joseph FOR THE PLAINTIFF
Isabelle Brochu FOR THE DEFENDANT
SOLICITORS OF RECORD:
Lucrèce M. Joseph FOR THE PLAINTIFF
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada