Date: 20020430
Docket: IMM-1786-02
Neutral citation: 2002 FCT 501
BETWEEN:
ROBERT EVERTON BROWN
Applicant
- and -
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for a stay of a removal order directed to the applicant and which is to be executed May 1, 2002.
[2] On March 10, 2002 an opinion of the Minister pursuant to paragraph 46.01(1)e of the Immigration Act determined that the applicant constituted a danger to the public in Canada; an application seeking leave for Judicial Review of the Minister's decision was filed with the Court on April 24, 2002 along with the stay of a removal order.
[3] The applicant was born in Jamaica and married a Canadian citizen in that country in 1992; he arrived in Canada as a visitor in February 1993. An application for landing on a spousal sponsorship was received September 15th of 1993. On September 30 of 1993 the applicant was ordered excluded pursuant to paragraph 32(5)(b) of the Act because he was a person described in section 19(2)(d) and 9(1) of the Act (inadmissible class).
[4] In Canada he was convicted of the following criminal offences:
March 28, 1996
Criminal Code S.405 Using an instrument with a fake name
Criminal Code S.145(2)(b) Failure to appear
December 4, 2000
Criminal Code S.348 Brake and enter
Criminal Code S.268 Aggravated assault
Criminal Code S.137 Fabricating evidence
Criminal Code S.139(2) Attempt to obstruct Justice
Criminal Code S.264 Utter threats
[5] A report under section 27 of the Immigration Act was signed October 14, 1997 that he was criminally inadmissible pursuant to section 19(2)(A).
[6] Spousal sponsorship was refused for criminal inadmissibility October 21, 1997. However, hoping rehabilitation could be possible a work permit issued which expired November 14, 2001 while the applicant was still incarcerated for the offences for which he had been convicted in December 2000; parole having been denied, the applicant remained incarcerated until April of 2002.
[7] The applicant was given ample opportunity to file submissions on the "danger to public opinion", but failed to avail himself of the opportunity.
[8] No claim for refugee status was ever officially filed; it was not until he was interviewed during the course of the inquiry which led to the departure order against him did the subject arise.
[9] The applicant's parents are in Jamaica as well as sisters, brothers. He now has four children in Canada one with his wife and three others arising out of three other relationships.
[10] The applicant now seeks mercy before this Court and submits that the law requires that he be allowed to remain in Canada until a Refugee Board has examined his claim for Refugee Status since he claims that he could be in trouble in Jamaica at the hands of criminal elements.
[11] The first submission from counsel for the applicant was to suggest that his client had not responded to Minister's request to submit argument to the eventual determination that he was a "danger to the public" and it should be the subject of a Judicial Review since Mr. Brown instructed counsel or an immigration consultant who failed to file any reply. This Court on many occasions has rejected this argument. (See Cove v. Canada, [2001] F.C.J. No. 482.)
[12] He further argues that Mr. Brown had indicated that he feared returning to Jamaica and that according to well established jurisprudence he was entitled to the least, a Refugee Claim hearing before he could be deported; he relied on Pushpanathan v. the Minister, [1998] S.C.J. No. 46.
[13] In his letter to the Minister of October 19, 2001, Mr. Brown writes that he does not "constitute a danger to the public", but fails to refer to any risks to which he may be subjected to if returned to Jamaica. In fact, this issue was never raised by the applicant during the 9 years he was in Canada until the issue is referred to in his affidavit in support of this application.
[14] Pushpanathan (supra) does not stand for the proposition advanced by counsel. This is a summary matter and I do not intend to elaborate any further.
[15] There is no serious issue. The pending application for leave and Judicial Review of the Minister's opinion remains unchallenged and was procedurally proper.
[16] His removal from family in Canada does not support an allegation of irreparable harm. He has four children from four different relationships and he has been in custody for the better part of three years. He has not provided for any of them during that entire period.
[17] The balance of convenience clearly favours the Minister. Here we have an applicant who was denied permanent residence from the date of his arrival; he has committed numerous offences while in Canada, why should he be given the right to remain? The Minister has a duty imposed under the Act to execute deportation orders and must do so.
[18] The application for Judicial Review is denied and the stay of the departure notice is dismissed.
"Paul Rouleau"
J.F.C.C.
Toronto, Ontario
April 30, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1786-02
STYLE OF CAUSE: ROBERT EVERTON BROWN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
DATE OF HEARING: MONDAY, APRIL 29, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: ROULEAU J.
DATED: TUESDAY, APRIL 30, 2002
APPEARANCES BY: Mr. Munyonzwe Hamalengwa
For the Applicant
Ms. Kareena R. Wilding
For the Respondent
SOLICITORS OF RECORD: Mr. Munyonzwe Hamalengwa
Barrister & Solicitor
45 Sheppard Avenue East
Toronto, Ontario
M2N 5W9
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020430
Docket: IMM-1786-02
BETWEEN:
ROBERT EVERTON BROWN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER