Date: 20050124
Docket: IMM-8504-04
Citation: 2005 FC 112
Vancouver, British Columbia, Monday, the 24th day of January, 2005
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
VICTOR MAURICIO MUNOZ PAEZ
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] UPON motion on behalf of the Applicant for a stay of execution of his removal order scheduled for January 25, 2005;
[2] AND UPON considering the affidavits and written submissions by the Applicant's and the Respondent's counsel;
[3] AND UPON hearing the oral submissions of the Applicant's and the Respondent's counsel;
[4] AND UPON considering the tripartite test in Toth v. Canada (Minister of Employment and Immigration (1998), 86 N.R. 302 (F.C.A.);
[5] This is an application for an order to stay the Applicant's removal until his application for leave and judicial review is considered and, if the judicial review is granted, until the Applicant's humanitarian and compassionate application (H & C) is reconsidered.
Serious Issues
[6] I am satisfied that the Applicant has raised some serious issues to be tried which are: the allegations of a breach of the duty of fairness and reasonable apprehension of bias by the decision-maker for his H & C application.
Irreparable Harm
[7] The Applicant has three children living in Canada. His oldest daughter, Valeria, is a Chilean citizen and currently lives with her mother who is separated from the Applicant. Valeria suffers from depression and sees a psychologist once every two weeks since the Applicant left the family home. In her affidavit she states that she is extremely close to her father, talks to him on the telephone every day and sees him every second day. Because of her psychological difficulties, Valeria is not in regular schooling but attends a special program for people who suffer from psychological problems or drug problems.
[8] The Applicant has a Canadian-born daughter named Isabela. He shares a close relationship with his daughter and her mother. He provides child support of approximately $200 per month. Isabela has the medical condition "bilateral reflux" and needs special care.
[9] On July 26, 2004, the Applicant was hit by a truck while crossing a street at a crosswalk. He is currently attending physiotherapy for his injuries. His neurological injuries have not yet been diagnosed. He has no medical coverage in Chile and there is no free national healthcare in that country. He submits that he will not be able to work to afford the necessary physiotherapy or neurological assessment and/or treatment, and will also lose his insurance benefits if he is returned to his country.
[10] I am satisfied that irreparable harm would result if the Applicant is deported at this time.
Balance of Convenience
[11] The Applicant does not appear to be a security threat or a danger to the public. The Respondent can remove the Applicant if his judicial review application is not successful. The balance of convenience favours the Applicant.
ORDER
THIS COURT ORDERS that the Applicant's removal order is stayed until his application for leave and judicial review is considered by the Federal Court and, if the judicial review is granted, until the Applicant's humanitarian and compassionate application is reconsidered.
(Sgd.) "Michel Beaudry"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8504-04
STYLE OF CAUSE: VICTOR MAURICIO MUNOZ PAEZ v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: January 24, 2005
REASONS FOR ORDER AND ORDER: BEAUDRY J.
DATED: January 24, 2005
APPEARANCES:
Mr. Phil Rankin FOR APPLICANT
Mr. Benton Mischuk FOR RESPONDENT
SOLICITORS OF RECORD:
Rankin & Bond FOR APPLICANT
Vancouver, BC
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada