Toronto, Ontario, April 17, 2007
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
and
AND EMERGENCY PREPAREDNESS
REASONS FOR JUDGMENT AND JUDGMENT
OVERVIEW
[1] This Motion for stay of the removal order against the Applicant is based on the existence of valid issues raised in his Application for Leave and Judicial Review of the Removal Officer’s refusal to grant the request for a deferral of the removal order.
BACKGROUND
[2] The Applicant has a Canadian wife, who is unable to work for medical reasons, and two very young Canadian children, one of whom is diagnosed with developmental challenges, hence requiring special care.
[3] The Applicant filed a permanent residence application under the Spouse or Common Law Partner in Canada class and with an alternative plea for Humanitarian and Compassionate Considerations (H&C). The Applicant had submitted his permanent residence application and has requested an expedited processing of the same.
[4] This Motion is based on serious legal and equitable issues, as well as irreparable harm, that will be caused if the Applicant’s removal from Canada is not stayed pending determination of the main Application for Leave and Judicial Review.
ISSUES
[5] (1) Does the Applicant raise a serious issue?
(2) Will the Applicant or another person suffer irreparable harm should the Applicant be removed from Canada?
(3) Does the balance of convenience favour the Applicant?
ANALYSIS
[6] In Turbo Resources Ltd. v. Petro Canada Inc., [1989] 2 F.C. 451 (F.C.A.), [1989] F.C.J. No. 14 (QL), the Federal Court of Appeal has described the object of an interlocutory injunction as follows:
The object of an interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; …
[7] The test to be applied in determining whether or not to grant a stay of removal has been established in Toth v. Canada (Minister of Employment and Immigration), [1988] 86 N.R. 302 (F.C.A.), [1988] F.C.J. No. 587 (QL), where the Federal Court of Appeal held:
The tri-partite test of Cyanamid requires, for the granting of such an order, that the applicant demonstrate, firstly, that he has raised a serious issue to be tried; secondly that he would suffer irreparable harm if no order was granted; and thirdly that the balance of convenience considering the total situation of both parties, favours the order.
(Reference is also made to: American Cynamide Co. v. Ethicon Ltd. [1975] A.C. 396 (House of Lords).)
SERIOUS ISSUE
[8] The Supreme Court of Canada has held that the test of: "serious issue to be tried" is simply that the issue being raised is one which is “neither frivolous nor vexatious.” (RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at para. 44.)
[9] In North American Gateway Inc. v. Canada (Canadian Radio-Television and Telecommunications Commission), [1997] F.C.J. No. 628 (QL), this test of a serious issue to be tried was further clarified in another case where it was held:
[10] The jurisprudence directs that the threshold of "serious issue to be tried" is a low one. The earlier jurisprudence suggested that the applicant had to establish a prima facie case before a stay would be granted. Since the decisions of the Supreme Court of Canada in Metropolitan Stores Limited v. Manitoba Food and Commercial Workers et al., [1987] 1 S.C.R. 110 and R.J.R. MacDonald, supra, the courts have held that the threshold is much lower: the applicant need only satisfy the Court that the matter on appeal is neither frivolous nor vexatious..
[10] In Munar v. Canada (Minister of Citizenship and Immigration), [2006] 2 F.C.R. 664, [2005] F.C.J. No. 1448 (QL), it has also been recently held by this Court that:
[21] In the case of an application for a stay of the decision of a removal officer, the Court must not only determine whether a serious issue is raised, but should go further and consider the merits of the application and the likelihood of success…
[11] Justice Yves de Montigny further ruled in the same case of Munar, above, agreeing with Justice Denis Pelletier in Wang v. Canada (Minister of Citizenship and Immigration), 2001 FCT 148, [2001] F.C.J. No. 295 (QL), that this higher threshold is justified where the outcome of the interlocutory relief sought will effectively result in a final determination of the main action.
[10] The Supreme Court of Canada has held that the test of "serious issue to be tried" is simply that the issue being raised is one which is not frivolous. RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 at para 44, [1994] S.C.J. No. 17. On the other hand, to succeed in the underlying judicial review, the applicant will have to show that the decision not to defer was subject to review for error of law, jurisdictional error, factual error made capriciously, or denial of natural justice. Federal Court Act, R.S.C. 1985 c. F-7 subsection 18.1(4). The result is that if the stay is granted, the relief sought will have been obtained on a finding that the question raised is not frivolous. If the stay is not granted and the matter proceeds to the application for judicial review, the applicant will have to demonstrate a substantive ground upon which the relief sought should be awarded. The structure of the process allows the applicant to obtain his/her relief on a lower standard on the interlocutory application, notwithstanding the fact that the relief is the same as that sought in the judicial review application. It is this congruence of the relief sought in the interlocutory and the final application which leads me to conclude that if the same relief is sought, it ought to be obtained on the same basis in both applications. I am therefore of the view that where a motion for a stay is made from a Removal Officer's refusal to defer removal, the judge hearing the motion ought not simply apply the "serious issue" test, but should go further and closely examine the merits of the underlying application.
[12] In this Application, the serious issue being raised is whether the Removal Officer erred in law in refusing to defer removal of the Applicant pending the determination of his permanent residence application under the public policy enunciated in the Spouse and Common Law Partner in Canada class and a pending alternative plea for H&C considerations, including the best interests of the Canadian children involved.
Pendency of the Spousal Sponsorship/H&C Application
[13] The Applicant filed his permanent residence application on March 31, 2007 (late date for reasons described below) under the Spouse and Common Law Partner in Canada class and also an alternative plea for H&C grounds, which included the best interests of his Canadian children.
[14] Due to unusual and exceptional circumstances revolving on a particular fact-situation, described below, the Applicant was not yet removal ready pending his application for permanent residence, based on the Spouse or Common Law Partner in Canada class and H&C considerations.
[15] It is settled law that a removal officer has certain discretion to defer removal when requested. (Man v. Canada (Minister of Citizenship and Immigration) 2005 FC 454, [2005] F.C.J. No. 574 (QL).)
[16] The following statement by Justice Conrad von Finckenstein by way of an Addendum in the case of Benjamin v. Canada (Minister of Citizenship and Immigration) 2006 FC 582, [2006] F.C.J. No. 750 (QL), is relevant to the case at bar:
[18] This case was twice postponed to allow the Applicant to make an application under the 'Public Policy under A25(1) of IRPA to Facilitate Processing in the Spouse or Common Law Partner in Canada Class' dated August 26, 2005. This has since been done on December 31, 2005 and the application is in process. It is expected that the Respondent will grant the Applicant an administrative deferral of removal as set out in section "E" of that policy. This Court can see no benefit in removing the Applicant to Nigeria, while his application (sponsored by his wife) is being considered, only to bring him back to Canada in an expedited fashion should his application be successful, as was suggested by the Respondent. Such a procedure totally fails to take into account the pain, dislocation and emotional toil entailed in any removal. The Respondent should keep the aforementioned factors in mind before attempting a removal while the Applicant's 'spouse in Canada application' is pending.
[17] In most cases, this Court has held that the pendency of an inland spousal or H&C application does not entitle the applicant to a deferral of a removal order. The motion for stay, in this particular case, is unique, unto itself, due to the chronology of facts and the actual narrative set therein.
[18] In the present case, the sponsorship H&C application was filed before the notification of the negative PRRA decision and before the removal order was issued.
[19] In Haighighi v. Canada (Minister of Public Safety and Emergency Preparedness), 2006 FC 372, [2006] F.C.J. No. 470 (QL), the motion for stay of the removal order was granted but the main application for judicial review was later dismissed. Again, the facts of this case can be distinguished from the present one because in Haighighi, the H&C application was filed only after the negative PRRA decision. In that case, the applicants simply placed before the removal officer their request for deferral with the statement that there is a pending H& C application that had recently been filed. The applicant in Haighighi did not provide the removal officer with a copy of the H&C application nor of the document which addresses the newly-identified risk.
[20] In the present case, not only did the Applicant offer to the removal officer a copy of the complete application package (which was refused), he also requested that the removal officer receive copies of other documents specifying the relevant H&C factors such as his wife’s medical condition, his son’s developmental challenges and letters of support from his son’s kindergarten teacher and the applicant’s employer. (Affidavit of the Applicant, paras. 31 to 33.)
[21] In Perry v. Canada (Minister of Public Safety and Emergency Preparedness), [2006 FC 378, [2006] F.C.J. No. 473 (QL), the Court held:
[14] The discretion of a removal officer to defer removal under s.48 of the IRPA is extremely narrow. It is restricted to determining when the removal order will be executed. In deciding when it is "reasonably practicable" to execute a removal order, a removal officer may consider compelling or special personal circumstances. (Simoes v. Canada (M.C.I.), supra at para. 12;Wang v. Canada (M.C.I.), supra at para. 45; Kaur v. Canada (M.C.I.), supra at paras 15 and 18; Mollaw v. Solicitor General of Canada, (September 28, 2004) IMM-8072-04) (Emphasis Added)
[22] It must be noted that the motion for stay was dismissed in the Perry case because the H&C application was still not filed when the request to defer the removal was made. The Applicant only presented as a basis for the request an intention to file an H&C application.
[23] In the present case, the Applicant made his application for sponsorship/H&C prior to the notification of the negative PRRA decision and the issuance of the removal order. Moreover, the Applicant also presented compelling and special personal circumstances with evidence as to the request for deferral.
[24] Canada has ratified the United Nations Convention on the Rights of the Child which specifies the consideration of the best interests of the child. This commitment was confirmed by the Supreme Court of Canada in the landmark case of Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817,where it was held:
[71] … The principles of the Convention and other international instruments place special importance on protections for children and childhood, and on particular consideration of their interests, needs, and rights. They help show the values that are central in determining whether this decision was a reasonable exercise of the H & C power.
[25] Although the removal officer does not have the discretion to make a full determination on the issue of the best interests of children, the appropriate forum for such a full consideration is through the Applicant’s sponsorship/H&C application. Nevertheless, a removal officer, in the appropriate circumstances, does have the discretion to defer removal until such time as the best interests of the child are fully considered in this process.
[26] It is also established that removal officers are nonetheless expected to be “alert and sensitive” to the best interests of the child. For instance, it has been held that:
[19] It is clear from this decision, and from others like it, that a Removal Officer does have a duty to be alive and sensitive to the short-term interests of children facing the removal of a primary caregiver from Canada: also see John v. Canada (Minister of Citizenship and Immigration) [2003] F.C.J. No. 583, 2003 FCT 420. If it is expected that children will remain in Canada, it is imperative to consider the adequacy of the arrangements that have been put in place for their care once the parent has left.
(Munar v. Canada (Minister of Citizenship and Immigration), 2006 FC 761, [2006] F.C.J. No. 950 (QL); Betton v. Canada (Minister of Public Safety and Emergency Preparedness). 2006 FC 1401, [2006] F.C.J. No. 1401 (QL).)
[27] It had likewise been held by this Court:
[40] … I cannot bring myself to the conclusion that the removal officer should not satisfy himself that provisions have been made for leaving a child in the care of others in Canada when parents are to be removed. This is clearly within his mandate, if section 48 of the IRPA is to be read consistently with the Convention on the Rights of the Child. To make enquiries as to whether a child will be adequately looked after does not amount to a fulsome H&C assessment and in no way duplicates the role of the immigration officer who will eventually deal with such an application …
(Munar v. Canada (Minister of Citizenship and Immigration), [2005] FC 1180, above.)
[28] In Betton above, the Court found that, “at least some of the concerns about Mr. Betton's children were immediate -- in particular, their care and financial support in the short-term. The officer should have considered whether a deferral of Mr. Betton's removal was necessary to allow an opportunity for appropriate arrangements to be made for the children.” The Court found that the removal officer failed to consider this important factor; therefore, the application for judicial review was allowed and an order was made requiring another officer to consider Mr. Betton's request to defer the removal order.
[29] It is also very interesting to note that in the case of Varga v. Canada (Minister of Citizenship and Immigration), 2006 FCA 394, [2006] F.C.J. No. 1828 (QL), which was invoked by the PRRA officer as basis for asserting that he did not have an obligation to consider the best interests of Canadian children in assessing the risks of removing at least one of the parents of the children, the Court also stated:
[19] Counsel for the Minister conceded that, if the respondents' H&C application had not been completed, they could have requested the removals officer to defer their removal pending the H&C consideration of any risks that their Canadian-born children would face in Hungary, assuming that leaving them in Canada was not a viable option. Thus, although the respondents were not entitled to have this issue taken into account by the PRRA officer, they would not be removed without some further consideration of the situation by the removals officer.
[30] In the case at bar, the Applicant did, in fact, do the necessary. In his Request for a Deferral of the Removal order, the Applicant specified the risks and irreparable harm that his children would suffer if he should be removed, demonstrating that leaving his family behind is not a viable option.
[31] It has been repeatedly emphasized in the deferral request letter as well as during the interview on April 4, 2007, that the Applicant has a Canadian wife, unable to work for medical reasons, and two Canadian children: his five-year old stepson, Favian, has been diagnosed with special needs arising from developmental challenges and he also has his two-year old daughter, Yvanna.
[32] The removal officer has been fully notified of Favian’s special needs as well as of his mother’s (Applicant’s wife) medical condition arising from the injuries sustained from a car accident last year. The removal officer was also given copies of a medical report confirming the mother’s medical condition and a professional assessment of Favian’s developmental challenges. (Affidavit of Applicant, paras. 31 to 33.)
[33] A consequence of the injuries sustained by the Applicant’s wife from last year’s accident is that she cannot work or live independently for extended periods of time. As a result of the total loss of hearing in her left ear, she is now unable to drive, lost her sense of balance, experiences frequent headaches and dizzy spells, which make it even more difficult for her to return to work or to take care of her two children by herself. (Affidavit of Ginette Samanta Haacke Jimenez, paras. 15 and 16.)
[34] Since the Applicant’s wife cannot work due to her medical condition, the Applicant remains the sole income earner of his family. His income becomes even more significant for Favian, whose special needs require him to be constantly involved in various school and extra-curricular activities, all of which entail additional expense for the family. (Affidavit of Ginette Samanta Haacke Jimenez, para. 11.)
[35] If the Applicant is removed from Canada, his wife would not want to apply for social welfare assistance either, knowing that this will make her ineligible to sponsor her husband to enable him to return to Canada as a permanent resident. This would lead to longer family separation which would contribute to an even greater irreparable harm to the family, especially the two growing children. Worse, the social welfare option would leave her and her family in an endless cycle of destitution and poverty.
[36] The Applicant submitted an affidavit from Favian’s teacher who is not only confirming the nature of Favian’s developmental challenges but also provides an assessment of the seriously prejudicial effects on the child if separated from the Applicant and/or moved to another country with the entire family. (Affidavit of Nancy Alo, paras. 6 to 14.)
[37] All of these factors strengthen the Applicant’s claim that his removal from Canada will bring unusual, undeserved or disproportionate hardship on his family, that is more than just the “mere inconvenience” and “usual consequences of deportation” that Justice John Maxwell Evans was referring to in the case of Tesoro v. Canada (Minister of Citizenship and Immigration), 2005 FCA 148, [2005] F.C.J. No. 698 (QL).
[38] The removal officer did not only refuse the deferral request but also failed to explain his reasons for denial and why he was not convinced that the children in particular, will face grave risks or suffer irreparable harm as a result of the immediate enforcement of the Applicant’s removal order.
Reason for Delay in Filing Sponsorship/H&C Application
[39] Another related matter contributed to the immigration difficulties in this case. That is, upon arrival in Canada, the Applicant retained the services of an immigration consultant whom, he was under the impression, was a lawyer and paid him for his services. The consultant provided services during his refugee hearings at the IRB, and when it was denied, filed a Notice of Application for Leave and Judicial Review with the Federal Court; however, the immigration consultant did not file the required Application Record. The Applicant was not even made aware of this omission until after he personally received the Federal Court’s decision dismissing his application not on the merits, but due to the “failure to file an Application Record.” Moreover, the Applicant was surprised only to learn later that the immigration consultant is actually not a member of the Ontario Bar hence could not appear before the Federal Court. (Affidavit of Applicant, paras. 12, 53 to 54.)
[40] Aside from the immigration consultant’s failure to represent the Applicant’s interests at the Federal Court, he misled the Applicant. The advice, the consultant gave, was that he could not file a permanent residence application under the Spouse or Common Law Partner in Canada class until after a divorce from his previous wife, even though the couple had been separated since 1999. What the advice failed to consider was the fact that the Applicant has been living together in a common-law relationship with his Canadian partner, hence long eligible to file the sponsorship application. (Affidavit of Applicant, paras. 56 to 59.)
[41] As the legal divorce proceedings took longer than expected, and that the final certificate of divorce was only obtained on March 29, 2007, the earliest date that the Applicant could marry was the next day, March 30, 2007. As a result, it was also only on that day that the Applicant thought he could file the sponsorship/H&C application.
[42] On the issue of a legal representative’s error, this Court has held in the case of Medawatte v. Canada (Minister of Public Safety and Emergency Preparedness), 2005 FC 1374, [2005] F.C.J. No. 1672 (QL), that:
[10] There is a great deal of jurisprudence in these matters to the effect that a party must suffer the consequences of his or her own counsel. I subscribe to that view. If a case has been poorly prepared; if relevant jurisprudence was not brought to the attention of the Court in a civil case; if there was a bad choice in witness selection, the consequences fall on that party. Is there a difference, however, between malfeasance and non-feasance? In this case, it is not a question of a lawyer doing something poorly. He did not do something he should have done. In Andreoli v. Canada (Minister of Citizenship and Immigration) 2004 FC 1111; [2004] F.C.J. No. 1349, (QL), the applicants' refugee claim was ordered abandoned because the interpreter in their lawyer's office failed to provide the authorities with a change of address. I found in that case the board in deciding that the applicants were the authors of their own misfortune was punishing them for the carelessness of a third party. I found that to dismiss that application would be to disregard the principles of natural justice. I said:
I issue this order keeping in mind the words of Lord Denning in Doyle v. Olby (Ironmongers) Ltd. (1969) 2 All E.R. 119, who at page 121 stated: We never allow a client to suffer for the mistake of his counsel if we can possibly help it. We will always seek to rectify it as far as we can.
We will correct it whenever we are able to do so without injustice to the other side. Sometimes the error has seriously affected the course of the evidence, in which case we can at best order a new trial.
(Emphasis added.)
[43] In this case, the Applicant was prejudiced by a former legal representative’s act and omission who also misrepresented himself as a member of the Ontario bar. As a result, the Applicant did not receive adequate and competent services. Without fully delving into this issue, this matter is simply being raised as another special circumstance which could be a factor in determining the existence of humanitarian and compassionate grounds surrounding this application.
IRREPARABLE HARM
[44] The issue of what constitutes irreparable harm has been discussed in a number of cases before this court. Some of the relevant ones are discussed below.
[45] In Martinez v. Canada (Minister of Citizenship and Immigration), 2003 FC 1341, [2003] F.C.J. No. 1695 (QL), Justice J. François Lemieux held as follows:
[18] The issue is whether the economic hardship and the emotional distress which will be experienced by the wife and daughter constitute irreparable harm…
[19] … the Convention stresses the importance of the family and states in Article 7(1) that it is a child's human right, as far as possible, to know and be cared for by his or her parents. In my view, if the IRPA is to be applied in a manner consistent with the Convention, the separation of a parent and child by the state without a consideration of the best interests of the child would be an ongoing infringement of the child's human rights. It also seems to me that such an infringement of a human right constitutes irreparable harm (Emphasis added.)
[46] It was further observed by Justice von Finckenstein in Rimoldi v. Canada (Minister of Citizenship and Immigration) 2003 FC 1481, [2003] F.C.J. No. 1877 (QL):
[9] … The finding of irreparable harm in Martinez, supra, is grounded on the facts of that case. As described above, the applicant father in Martinez, supra, his spouse and their children all had different nationalities. The only place where the children could access as of right the opportunity to be cared for by their father was in Canada, if the father was granted the right to remain. It was this implied lack of another country for the children to go to that drove the irreparable harm determination.
[47] The Court in Belkin v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1159 (QL), rejected the claim that irreparable harm only refers to the possibility of interference to bodily integrity of the person to be removed. Rather, it was held in that case that judges have often found otherwise:
[12] First, there is Toth v. M.E.I., [See Note 3 below] in which the Federal Court of Appeal found that the possibility of the failure of the family business headed by the appellant, which would lead to personal and economic problems for the latter's family and unemployment for the employees of the business, constituted irreparable harm. In Calabrese v. M.C.I., Mr. Justice Gibson allowed a stay application in the case of a young man who was to have been returned to Italy, a country he had left as a child and who did not speak Italian. In Garcia v. M.C.I., Mr. Justice Dubé held that there would be irreparable harm if a man whose state of health was fragile were returned to Nicaragua. Gibson J. allowed a stay application in the case of a criminal undergoing rehabilitation who would be deprived of the community resources on which he relied on the ground that the loss of these sources of support would constitute irreparable harm in his case. There are other similar examples.
[48] The Court in Toth, above, held:
… if the applicant is deported now, there is a reasonable likelihood that the family business will fail and that his immediate family as well as others who are dependent on the family business for their livelihood will suffer. I think that at least a portion of this potential harm is irreparable and not compensable in damages.
[49] Similarly, in Melo v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 403 (QL), Justice Pelletier has concluded:
[19] … Irreparable harm, if it is to be found, must be found in the circumstances of the applicant and those around him.
[20] … there is authority in the Federal Court of Appeal to the effect that damage to the economic and other interests of the applicant can satisfy the requirement of irreparable harm.
[50] The Court has likewise held in Melo, above, that the best interests of the children will need to be considered in the main application for judicial review. If the interlocutory motion is denied, their interests will be prejudiced prior to them being fully considered thus “effectively rendering judicial review nugatory.” Therefore, it was ruled in the same case that:
[22] … It is in circumstances similar to these that Robertson J.A. held in Suresh v. Canada [1999] 4 F.C. 206, [1999] F.C.J. No. 1180 that the loss of the benefit of an application can amount to irreparable harm within the meaning of the tri-partite test in Toth. If there is to be any reality to the judicial review application, the status quo must be maintained. While the benefit in question may appear to be one for the children, it is also a benefit for Mr. Melo. I find that the loss of the benefit of the application for judicial review constitutes irreparable harm for the purposes of this application.
[51] In the case of Jmakina v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1680, the Court has found irreparable harm arising from the psychological effects on a child as a result of a deportation.
[32] Counsel for the applicant further submitted that the child applicant would suffer irreparable harm by reason of his deportation to the United States. I agree with that submission. The evidence in the record establishes that the needs and interests of the child applicant would be severely and adversely affected, particularly in relation to his schooling, his psychological well-being and his relationship with his stepfather, by the disruption caused in his life as a result of his deportation to the United States. In reaching this conclusion, I have considered that the deportation to the United States serves absolutely no practical purpose in the present case, particularly given the outstanding applications for sponsorship in the family class and for permanent residence. In short, I cannot permit an innocent young child to be severely prejudiced by countenancing his deportation in circumstances that make no sense. I also see no purpose in separating the female applicant from her child.
[52] Similar to Jmakina, there is a pending permanent residence application under the sponsorship/H&C class which will be rendered nugatory if this motion for stay of the removal order is denied. Therefore, it stands to reason that the removal order be stayed pending the final determination of the Applicant’s permanent residence application.
[53] Moreover, Justice Frederick Gibson held in Harry v. Canada (Minister of Citizenship and Immigration), [2000] FCJ No. 1727 (QL), that there is irreparable harm in depriving the applicant and his family with a “relatively secure life in Canada…” and sending them to an uncertain future in another country:
[17] … The applicants and their child have a relatively secure life in Canada for the time being. On the evidence before me, their future in Trinidad is uncertain at best, both economically and socially. Such uncertainty represents irreparable harm for the young child, as would leaving her in Canada without the care and attention of either of her parents.
[54] Irreparable harm has clearly been found where the best interest of a child have not been assessed prior to removal from Canada. (Iskander v. Canada (Minister of Citizenship and Immigration), 2002 FCT 235, [2002] F.C.J. No. 308 (QL); Vaseekaran v. Canada (Minister of Citizenship and Immigration), 2004 FC 913, [2004] F.C.J. No. 1117 (QL); Dennis v. Canada (Minister of Citizenship and Immigration), 2004 FC 196, [2004] F.C.J. No. 223 (QL).)
[55] In this case, the Applicant has repeatedly said that he cannot possibly leave his family behind since they are fully dependent on him for their existence. Owing to the special circumstances of the family (i.e. no citizenship in other countries than Canada, no real connection in the country of removal, as well as the absence of adequate support for a child with special needs, among others), the uncertain future and irreparable harm they will suffer are more than just the “mere inconvenience” and “usual consequences of deportation” cited in the case of Tesoro, above, and which resulted in the denial of a request to stay a removal order.
[56] As the Applicant’s wife is ill and unable to work, and they have two very young Canadian children who need constant care and attention, and that one of these children is suffering from developmental challenges, all of which constitutes crucial factors in weighing the extent of irreparable harm to be suffered by the Applicant’s family.
[57] Irreparable harm has been established in this case. Irreparable harm is the following:
(a) The children’s best interests will not be assessed prior to removal and, as such, the rights of the child under the Convention on the Rights of the Child as confirmed in the case of Baker, above, will be breached. The breach of a fundamental human right constitutes irreparable harm.
(b) The children’s best interests will not be assessed prior to removal and, as such the grounds for the Applicant’s receiving favourable consideration of his permanent residence application based on the spousal sponsorship / H&C application is significantly undermined. The effect is to deprive the Applicant substantially of all the benefit of his application. This also constitutes irreparable harm.
BALANCE OF CONVENIENCE
[58] The Court is satisfied that a serious issue and irreparable harm are made out, and that the balance of convenience favours the Applicant. This proposition was clearly stated in the case of Membreno-Garcia v. Canada (Minister of Employment and Immigration), [1992] 3 FC 306, [1992] F.C.J. No. 535 (QL), where Justice Barbara Reed concluded that once the Applicant had made out an arguable case of irreparable harm, the balance of convenience would be with the Applicant.
[59] When considering whether or not to grant a stay, the Court considered the dicta in Turbo Resources Ltd. v. Petro Canada Inc., [1989] 24 CPR (3d) 1 (FCA), [1989] F.C.J. No. 14 (QL), where Justice Arthur Stone stated that:
… where other factors appear to be evenly balanced it is a counsel of prudence to take such measures as are calculated to preserve the status quo...
JUDGMENT
THIS COURT ORDERS that the stay of the Applicant’s removal from Canada be granted until the Spouse or Common Law Partner in Canada class application and the H&C application are both finally determined.
“Michel M.J. Shore”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1477-07
STYLE OF CAUSE: HARRY OMAR BONIL ACEVEDO
v. THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 16, 2007
APPEARANCES:
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Ms. Maria Deanna P. Santos
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Ms. Leanne Briscoe
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SOLICITORS OF RECORD:
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MARIA DEANNA P. SANTOS Toronto, Ontario
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JOHN H. SIMS, Q.C. Deputy Attorney General of Canada
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