Date: 19980909
Docket: IMM-122-98
BETWEEN:
CARTUSHA JANE SKYERS,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
MULDOON, J.
[1] The applicant brought an application to quash Immigration Officer F. Clark's determination (file 3294-22938261) of December 29, 1997 that insufficient humanitarian and compassionate grounds exist to warrant processing the applicant's application from within Canada, pursuant to subsection 114(2) of the Immigration Act.
[2] This Court was given pause by the applicant's plight and, on March 23, 1998, the Court granted an interim injunction restraining removal "on an interim basis until all possible proceedings in and from this proceeding have run their course * * *".
[3] The applicant had sought leave to stay or quash the removal order made against her on May 12, 1995, pursuant to sections 27(2)(a) (is within an inadmissible class), 19(1)(b) (is unable to support herself) and 19(1)(c) (convicted of an offence in Canada) of the Act.
[4] The affidavit of Theresa Herreria, filed by the respondent helpfully cited items concerning the applicant lodged in the storage faculty of the Field Operating Support System (F.O.S.S.) of the respondent's department. The deponent's following paragraphs are noted:
3. The F.O.S.S. indicates that the Applicant entered Canada from Trinidad, Tobago in 1980 as a visitor.
4. The F.O.S.S. indicates that the Applicant was granted a Minister's permit from June 7, 1985 to June 9, 1986 and from September 13, 1988 to April 13, 1989.
5. The F.O.S.S. indicates that on April 7, 1992 the Applicant was convicted of attempted fraud of over $1000.00 and received a suspended sentence and one year probation. This offense entailed the Applicant's forging of a cheque stolen from her neighbor.
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7. The F.O.S.S. indicates that on June 25, 1996 the Applicant was found not to be a Convention refugee by the Immigration and Refugee Board.
8. The F.O.S.S. indicates that on August 21, 1996 the Applicant received a negative Post Determination Refugee Claimants in Canada Class (PDRCC) assessment.
9. The F.O.S.S. indicates that on February 20,1997 the Applicant applied for permanent residence in Canada.
10. The F.O.S.S. indicates that on September 18, 1997 the Applicant applied for leave for a judicial review application regarding the removal order which had been made against her. On September 29, 1997 the Federal Court dismissed the Applicant's motion for a stay of the removal order against her. On February 20, 1998 the Federal Court dismissed the application for leave to apply for judicial review.
11. The F.O.S.S. indicates that on October 3, 1997 the Minister directed that the removal from Canada of the Applicant be deferred until her application for permanent residence was decided upon.
12. The F.O.S.S. indicates that on December 15, 1997 the Applicant attended an interview regarding her application for permanent residence in Canada. The F.O.S.S. notes of that interview indicate that:
(a) Although the Applicant had stated she had worked for approximately 7 out of the 17 years she had been in Canada, she did not provide any proof of employment.
(b) Her previous criminal conviction was considered.
(c) It was noted that she had family whom she could return to in Trinidad and with whom she kept in constant correspondence.
(d) It was indicated that the Applicant's husband would not include her two dependents on the undertaking of assistance as he felt that he could not provide lodging, care, maintenance, and financial support for them.
(e) It was concluded that there were insufficient humanitarian and compassionate grounds that would warrant her acceptance under section 114 of the Immigration Act.
13. The F.O.S.S. indicates that the Applicant's application for permanent residence was refused on December 22, 1997.
14. The F.O.S.S. indicates that the Applicant has been a welfare recipient for a good part of the many years she has resided in Canada.
15. The F.O.S.S. indicates that the Applicant has returned to Trinidad several times since her 1980 arrival in Canada without problem.
[5] The immigration officer gave no reasons to the applicant for rejecting her application, on humanitarian and compassionate grounds, within Canada, but simply wrote:
* * *
I have carefully reviewed your application and your individual circumstances and have determined that there are insufficient humanitarian and compassionate considerations to warrant an exemption from normal legislative requirements.
The Cost Recovery fee of $500.00 that you paid for this application is not refundable.
Since you are the subject of a Removal Order, this letter is being copied to Detentions and Removals CIC. You may be contacted in the near future by that office to make removal arrangements.
I regret that the decision could not be favourable. The refusal to process your application from within Canada does not affect your right to apply abroad.
Experience indicates that the applicant's chance of a successful application abroad, once she departs Canada is really nil. So, it looks bad for her, but there are two sides to this story. It is difficult to discern that the immigration officer understood the meaning of the words "humanitarian" and "compassionate". The officer's notes on the F.O.S.S. are exhibited and they reveal only cold, hard-hearted rebuff - anything but humanitarianism and compassion.
[6] What appears to be the worst aspect of the applicant's plight is her 1992 conviction of attempted fraud. The applicant, who was not represented by counsel, explained at the hearing that she got into an accident, and after her sick benefits ran out she had no source of income. She was at that time separated from her first husband, a beater, and had to seek welfare relief, but it was withheld because of a dispute over her status in Canada. She was desperate when she found a cheque payable to her neighbour and tried to negotiate it in a Mini-Mart but the clerk became suspicious and the applicant lost her nerve and the police were called. She related that the provincial judge had sympathy for her and accorded a discharge with probation. She averred that she would never repeat her mistake, having learned again by it what she knew and ought to have adhered to before she made that mistake of judgment.
[7] No one should make little of such a crime, but no one should overlook the leniency of the sentencing judge in comparing what that judge imposed with the maximum term of 10 years' imprisonment for the worst commission of the attempted fraud offence. How often is it declaimed in law schools, on public platforms and even in Parliament itself that there is some justification for a person with no money to buy food, in stealing a loaf of bread. That scenario is rarely played out in a welfare State, but in the applicant's case welfare was being withheld. So her plight was much akin to the poor person who steals a loaf of bread. The immigration officer either could not understand that, or just shrugged it off. This Court writhes at the prospect of upholding that decision.
[8] In this matter, the Court had made two interim orders, already, in order to permit the applicant opportunities to pursue such avenues of relief as may be advised. One such is applying for a pardon from her conviction, for which she became eligible in April, 1998. The applicant has not reported any such activity to the registry.
[9] The Court has been requested by the respondent to dispose of this matter, and that request is reasonable. The Court will accord the applicant time until close of business on Thursday, November 12, 1998, to inform the Court and the respondent on oath what, if anything, she has done to satisfy the conditions of the Court's orders dated March 23 and June 9, both 1998, failing which the Court will make a peremptory disposition of her application. If circumstances are shown to persuade the Court to make some further favourable order, the Court will also then receive any submissions which the respondent may wish to make.
Judge
Ottawa, Ontario
September 9, 1998
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-122-98
STYLE OF CAUSE: CARTUSHA JANE SKYERS v MCI
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE MULDOON
DATED: September 9, 1998
SOLICITORS ON THE RECORD:
Ms. Cartusha Jane Skyers ON HER OWN BEHALF
Malton, Ontario
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada