Date: 20000630
Docket: IMM-3316-00
BETWEEN:
| PASTORA POLANCO JORDAN, REINALDO ISMAEL JORDAN |
and MARCOS LOPEZ JORDAN,
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.:
[1] The applicants Pastora Jordan, the mother, her son Reinaldo Jordan, age 20 and her nephew Marcos Jordan, age 13, of whom she has legal custody in Canada, all citizens of Venezuela, apply to this Court for an interim stay of their removal from Canada scheduled for July 4, 2000.
[2] Their application for leave and judicial review, filed on June 26, 2000, seeks an order from this Court of mandamus compelling Citizenship and Immigration Canada ("CIC") to make a decision on their application for landing on compassionate and humanitarian grounds before their removal.
BACKGROUND
[3] The applicants came to Canada in 1993. They made refugee claims which were denied by the Refugee Division on November 28, 1995. They sought leave to commence judicial review proceedings from this Court but their application was refused. As a result, the conditional departure order which had been made against them became effective.
[4] On September 17, 1997, their application to be determined members of the Post-Determination Refugee Claimants in Canada Class ("PDRCC") was rejected. The Post-Claim Determination Officer found the applicants were not persons who will be subjected to a personal, objectively identifiable risk to their life, of extreme sanctions or of inhumane treatment if required to leave Canada.
[5] In January 1997, Pastora Jordan made an application for permanent residence in Canada with a request for exemption on humanitarian and compassionate grounds in order to permit inland processing. Her son and her nephew were named as dependents.
[6] In the context of that H & C application, on October 27, 1998, the applicants" solicitor filed with CIC a psychiatric report prepared by Vincent DeMarco, a consulting psychiatrist. He diagnosed Pastora Jordan as suffering a post-traumatic stress disorder. The basis for his diagnosis was the disclosure by Pastora Jordan that she had been sexually assaulted by police in Venezuela, a fact which the record indicates she had not disclosed either to the Refugee Division or to the Post-Claim Determination Officer.
[7] Dr. DeMarco"s letter said he conducted the interview through an interpreter, Csilla Nagy, a social worker at Access Alliance. His report indicates Pastora Jordan has five children with two living in Canada. Dr. DeMarco indicated of the remaining three children, one is a doctor in Venezuela. In his covering letter enclosing the report to CIC, the applicants" solicitor advised CIC that "this report provides additional corroborative evidence of the psychological risk of return previously addressed for this woman and her family included in her application".
[8] On February 29, 2000, CIC declined to approve Pastora Jordan"s H & C application. Amongst the factors to be taken into account in the exercise of discretion, is whether there exists unusual, undeserved or disproportionate hardship including whether persons might face severe government sanctions on returning to their home country.
[9] No application for leave and judicial review was filed in this Court by the applicants seeking review of the negative H & C determination. I asked counsel for the applicants why such an application had not been made in light of the psychiatric report which had been filed in October of 1998. Counsel for the applicant advised me the applicants had decided to pursue another avenue.
[10] On March 14, 2000, Pastora Jordan made a second application for permanent residence with a H & C request for inland processing. This second application was different than the first which had been turned down in February of 2000. This second application was now supported by a sponsorship from Pastora Jordan"s daughter who is a landed immigrant in Canada. In that second application, Pastora Jordan named her son & nephew as dependents. This second application is outstanding.
[11] On June 6, 2000, Reinaldo Jordan made an independent application for permanent residence in Canada seeking inland processing on H & C grounds. He filed such application because on May 20, 2000, he married Lindsay Angelow, a Canadian citizen, who is sponsoring him. This application is also still outstanding.
[12] In support of their application for interim stay, Pastora Jordan swore an affidavit dated June 22, 2000. Attached as Exhibit "A" to this affidavit is a letter dated March 4, 2000, written by Csilla Nagy of Access Alliance to CIC. That letter indicates Pastora Jordan has been her client since February 16, 1998. Csilla Nagy said this:
| She came to see me because, at the time, she was facing potential deportation. She was extremely upset because she was afraid to return to Venezuela. She related her history of police harassment, which included imprisonment and sexual violation in prison. (More details are available in the attached copy of an assessment by Dr. Vincent DeMarco, June 2, 1998). I was the first person to whom she had confided her sexual assaults. She was extremely ashamed as a result of the assaults.... Eventually, she permitted me to access a psychiatric consultation for her and to provide this consultation result to her lawyer as support for her immigration application. |
| I provided mental health counselling to Ms. Jordan throughout this process and have been available to her ever since, as needed. Her family is still unaware of the sexual assaults and this continues to be her wish. |
[13] Csilla Nagy concluded her letter to CIC by saying the following:
| I fear that deportation to Venezuela would break this exceptional woman and her exceptional child. In Venezuela, Ms. Jordan would have to go into hiding to avoid renewed contact with her torturers. She could be in significant danger there in the future as the police "brotherhood" is very strong. Her mental health would also undergo serious deterioration, not only for being back at the place of her torture but also because of the pain of rejection by Canada. She cannot understand how she has failed here. Her son was extremely upset by the letter of rejection and I suspect that he also has no idea of why he would have been rejected. |
ANALYSIS
[14] No challenge is made by the applicants on the legality of the deportation order made against them. Section 48 of the Immigration Act provides that subject to sections 49 and 50 (which have no application here), a removal order shall be executed as soon as reasonably practicable.
[15] The clear line of decisions by judges of this Court is to the effect, by and of itself, an outstanding H & C application is not a bar to the execution of a removal order.
[16] Special circumstances must exist which compel this Court"s intervention. One of these circumstances is where CIC is dilatory in processing an H & C application including one supported by spousal sponsorship. Moudrak v. Canada (M.C.I.) , [1998] F.C.J. No. 1273, a decision of Lutfy J., as he then was, is an example. This is not the case here. Another is found in Schelkanov v. Canada (M.C.I.), [1994] F.C.J. No. 496, a decision by Strayer J., as he then was.
[17] Counsel for the applicants urged upon me that the tripartite test of serious issue, irreparable harm and balance of convenience has been met in this case.
[18] Counsel for the applicants said the serious issue test was satisfied because the two outstanding H & C applications were worthy ones and had a good chance of being approved.
[19] This argument cannot succeed because this factor is not one of the kinds of circumstances recognized by this Court justifying staying the execution of a lawful deportation order. The outstanding H & C applications will continue to be processed by CIC and a decision will be made.
[20] Counsel for the applicants said I should be fair and practical about the matter. He said, if the applicants are required to leave Canada, it was unlikely they could return to Canada for an interview on their H & C applications and would not have the financial resources to do so. Counsel for the applicants, however, had no evidence to support these arguments. In any event, I agree with counsel for the respondent the applicants can be interviewed abroad, and, in this modern age, there are other ways of communicating.
[21] I considered whether Pastora Jordan"s psychiatric condition could be the basis for this Court"s intervention. Again, counsel for the applicants said I should be fair and that it is not fair to remove the applicants to Venezuela. Unfortunately, this argument must also fail.
[22] This Court does not have original equitable jurisdiction to decide, generally speaking, whether it is fair or unfair to remove someone from Canada. This Court can only intervene in defined circumstances by applying proper legal principles which, in this case, place upon the applicants the burden of meeting the tripartite test for granting stays.
[23] The record indicates Pastora Jordan"s mental condition was disclosed to CIC in October of 1998. I have no evidence this fact was not taken into account by CIC in reaching its negative decision not to approve her H & C application and, as mentioned before, no leave application from this negative determination was launched by the applicants in this Court.
[24] If the medical report had not been taken into account they had a good basis for seeking leave. I considered whether Csilla Nagy"s letter of March 4, 2000 added a new aspect which should be taken into account at least by CIC before making that removal. I am satisfied Ms. Nagy"s letter of March 4, 2000 does not disclose fundamentally new circumstances which were not previously before CIC and considered in the context of the H & C application turned down in February 2000.
[25] The circumstances of the case before me are very similar to the case of Ram v. Canada (M.C.I.), [1996] F.C.J. No. 883, a decision of my colleague MacKay J. In that case, Mr. Justice MacKay decided no serious question was raised by the applicant"s application for landing from within Canada on H & C grounds in view of his recent marriage to a Canadian citizen. He emphasized that the outstanding H & C application would be considered thoroughly under established processes of CIC.
[26] He also touched upon the anticipation of suffering quite serious dislocation and emotional stress. He also appreciated that removal may cause dislocation and some psychological difficulties for Mr. Ram himself but added that everyone who is required, against his or her will, to leave Canada when he or she has no right to remain in this country faces similar difficulties.
[27] Mr. Justice MacKay commented upon the question of fairness. It was urged before him that the case had special considerations and there was no particular urgency for Mr. Ram to leave Canada. He rejected this argument saying the Minister has a responsibility under the Act to discharge the tasks assigned to her by legislation which includes the task of ensuring that persons who have no right to remain in this country are not permitted to do so.
[28] In the circumstances, I find that the applicants have not made out a serious issue.
[29] For all of these reasons, the applicants" application to stay the removal from Canada is dismissed.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
JUNE 30, 2000