IMM-819-97
B E T W E E N:
NEVILLE DAVID STAMPP
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
NADON J.:
On February 27, 1997 I heard, by way of a conference call, the Applicant"s motion for a stay of execution of a deportation order dated November 17, 1995. At the end of the hearing, I informed counsel that the Applicant"s motion would be denied and I so ordered. I also informed counsel that I would provide written reasons for my order. These are my reasons.
The Applicant, born on April 8, 1968, is a citizen of Jamaica. He entered Canada on August 1, 1990 as a farm worker. Subsequently, he sought and received an extension of his visa from the immigration authorities. He was allowed to remain in Canada until March 1991.
Notwithstanding the fact that his visa had expired, the Applicant remained in Canada. On December 9, 1993 he was arrested. At that time, a removal order was issued against him. On December 11, 1993 the Applicant was released upon a $2,500.00 performance bond being posted by Locksley Stephens. The Applicant then decided to claim refugee status in Canada and, as a result, a conditional departure order was issued. On November 17, 1995, the Applicant withdrew his refugee claim and the conditional departure order became a deportation order.
On February 6, 1996 the Applicant was advised by Immigration Canada that he had to report for removal in the latter part of February 1996. On February 13, 1996 the Applicant received a copy of his removal itinerary and acknowledged receipt thereof. On February 28, 1996 the Applicant failed to report as requested to Pearson Airport"s Terminal Two for removal arrangements. In his affidavit, the Applicant states that he did not report because he was advised by an immigration consultant that "I should lie low given the strong merits of my application". This application is an application for landing in Canada on humanitarian and compassionate grounds. According to the Applicant, he withdrew his refugee claim on the advice of the immigration consultant who recommended that he file an application for landing on humanitarian and compassionate grounds. However, by February 28, 1996, that application had not been filed.
On April 2, 1996 a warrant for the arrest of the Applicant was issued. On February 21, 1997 the Applicant was arrested and was advised on February 24, 1997, that he would be deported from Canada on Thursday, February 27, 1997, at 11 o"clock a.m. On February 26, 1997, the Applicant, through a friend, Ms. Smith, retained Mr. Barnwell to act on his behalf. Mr. Barnwell immediately wrote to the Court to advise that he had been retained and that he would be shortly filing a stay application. On February 26, 1997, Mr. Barnwell filed an application for leave and for judicial review seeking an order of mandamus against the Minister of Immigration in respect of the Applicant"s application for landing. The motion for stay was filed on February 27, 1997.
The Applicant"s case is relatively simple. He states in his affidavit that he has been informed by his immigration consultant, James R. Ouimet, that an application for landing was sent to Immigration Canada on April 17, 1996. The Applicant states that, to this date, he has yet to hear from Immigration Canada and as a result, he seeks an order in the nature of mandamus compelling the Minister to consider his application for landing in Canada. Insofar as the motion for a stay of execution is concerned, the Applicant argues that he will suffer irreparable harm if he is removed from Canada, that there is a serious issue to be argued on his application for judicial review and that the balance of convenience lies in his favour.
Because of the lateness of the present application, it was very difficult for counsel for the Respondent to prepare adequately for the hearing. Notwithstanding the lack of preparation time, Ms. LeRiche was able to prepare a draft affidavit of Kathie Woodcox which I allowed her to read to me and to Mr. Barnwell on her undertaking that she would diligently file Ms. Woodcox" affidavit. That affidavit was filed with the Court on February 27. As exhibit "A" to her affidavit, Ms. Woodcox filed a document entitled "immigration detention review". This document traces the Applicant"s case history from December 1993 to the present date.
Ms. LeRiche, for the Respondent, argued that the motion should not be granted as the Applicant had not shown irreparable harm and that, in any event, the balance of convenience was in the Respondent"s favour. I came to the same conclusions and therefore dismissed the motion.
With respect to irreparable harm, the Applicant states that he is an orphan and that he has nowhere to go in Jamaica. Furthermore, he states that he has never been on Welfare nor does he have a criminal record. Further, the Applicant states that he has lived common-law with Ms. Angela Stephens, a Canadian citizen, for the last five years. The Applicant states that Ms. Stephens has five children and that he has a good relationship with the children whose ages range from 7 to 17. The Applicant states that he pays 50% of Ms. Stephens" rent, groceries and utilities. He states that if he is removed from Canada, Ms. Stephens" family "will loose [sic] my psychological and monetary support and will be forced further into poverty. In addition, I will lose the psychological comfort that I have taken for granted for the past five (5) years".
I should point out that there is no evidence before me that the Applicant is presently employed. The evidence on this point, led on behalf of the Applicant, by way of his own affidavit, appears at paragraph 3(vii) where he states:
| While I have been in Canada I have worked in various places including, construction sites where I have been able to make approximately, $700.00 to $800.00 each week. I have never been on welfare and have no criminal record. |
There is also some evidence of his employment record in the application for landing prepared by Mr. Ouimet. According to that application, the Applicant worked from June 1995 to April 1996 for Ancoe Contracting of Brampton, Ontario. However, no details in regards thereto are given.
I note for the record that I do not have an affidavit from Ms. Stephens nor do I have an affidavit from Mr. Ouimet, the immigration consultant. However, the Applicant submitted copy of the letter which the immigration consultant allegedly sent on April 17, 1996 to Immigration Canada. That letter, as I pointed out to counsel during the hearing, is not dated. I also pointed out to counsel that the Applicant"s application for landing, attached to Mr. Ouimet"s letter, was neither dated nor signed. Mr. Barnwell then informed me that he had in his file, in Toronto, a signed and dated copy of the application. Mr. Barnwell exhibited a copy of this document to Ms. LeRiche who was also in attendance at the Court"s Office in Toronto.
Be that as it may, the position taken by the Respondent was that it had no record of an application for landing in Canada having been filed by Mr. Ouimet on behalf of the Applicant.
When I made my order denying the Applicant"s motion, I accepted that the Applicant"s application for landing had indeed been sent to Immigration Canada and that it had been received. Almost a year has gone by since the application for landing was filed and the Applicant has not yet heard from Immigration Canada although the Minister"s policy appears to be that this type of application will be processed within 120 days of receipt. Even though a long delay has elapsed, neither the Applicant nor his immigration consultant appear to have taken any interest whatsoever in the application. The application was sent mid-April 1996 and neither the Applicant nor his consultant have either telephoned or written to Immigration Canada to find out what has happened to the application.
What the Applicant has demonstrated is possible hardship if he were removed from Canada. Hardship, however, does not constitute irreparable harm. Further, the fact that Ms. Stephens will be deprived of the Applicant"s financial contribution does not constitute, in my view, irreparable harm. In Calderon v. Canada (Minister of Citizenship and Immigration) (1995), 92 F.T.R. 107 (F.C.T.D.) Mrs. Justice Simpson expressed her view of the meaning of irreparable harm as follows:
| In Kerrutt 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 an 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 the family. |
I agree entirely with Simpson J. that irreparable harm is "more than the unfortunate hardship associated with the breakup or relocation of the family". The Applicant did not demonstrate that irreparable harm would follow if he were removed from Canada.
I now turn to the balance of convenience issue. It is beyond question that had the Applicant presented himself to Immigration Canada on February 28, 1996, he would have been removed from Canada at a time when he had not filed his application on humanitarian and compassionate grounds. However, the Applicant was not removed because, on the suggestion of his immigration consultant, he did not present himself and decided to "lie low".
Since his arrival in Canada, the Applicant has been arrested on two occasions by Immigration Canada, namely on December 9, 1993, and February 21, 1997. Furthermore, in February 1996, he was informed that he would be removed on February 28, 1996, and he accordingly signed an acknowledgement of receipt of his removal itinerary. Notwithstanding this, the Applicant did not present himself on February 28, 1996. When he was arrested on February 21, 1997, the Applicant informed Immigration Canada that his current address was 171 Westmore Drive, Etobicoke, Ontario. Until then, the Applicant"s last known address, as far as Immigration Canada was concerned, was 20 Graydon Hall Drive, Don Mills, Ontario. Although the Applicant lived with Ms. Stephens at 14 Willowlea Drive in Scarborough, he appears to have informed Immigration Canada that he lived in Etobicoke.
When deciding whether the balance of convenience lies in favour of an Applicant or the Respondent, reference must be had to Section 48 of the Immigration Act pursuant to which a removal order must be executed as soon as reasonably practicable.
From March 1991 to December 1993, the Applicant was illegally in Canada. Upon his arrest on December 11, 1993, a removal order was issued against him. He subsequently filed a refugee application and, as a result, a conditional deportation order was issued. His application for refugee status was abandoned in November 1995, and a deportation order was then issued.
The Applicant now appears before me seeking a stay of that deportation order on the ground that he will suffer irreparable harm. As I indicated earlier in these reasons, it has not been demonstrated to my satisfaction that the Applicant would indeed suffer irreparable harm. Furthermore, in the circumstances, I am of the view that the balance of convenience, in any event, lies in favour of the Respondent. To order the stay of the deportation order, in the present circumstances, would, in my view, be tantamount to condoning the Applicant"s ability to evade the application of the immigration laws of this country and the officers whose task it is to enforce these laws. Also of relevance, in my view, is the fact that Immigration Canada has had to arrest the Applicant twice. Also, this is the second time that removal arrangements have been made for the Applicant. No doubt, considerable time, effort and expenses have been incurred.
It may well be that the Minister has not been diligent in processing the Applicant"s application for landing in Canada. Notwithstanding, the Applicant has had ample opportunity to take those steps which might enable him, if that be his wish, to convince Immigration Canada that they should allow him to remain in this country on a permanent basis. I note that the Applicant withdrew his refugee claim on November 17, 1995 and that he did not file his application for landing before April 1996, i.e. five months later. I also note that since filing the application, the Applicant has apparently not shown much interest for his application. Interest on his part and that of his consultant appears to have arisen following his arrest on February 21, 1997.
For these reasons, I was not prepared to stay the deportation order.
"MARC NADON"
Judge
Ottawa, Ontario
March 6, 1997