Date: 19980828
Docket: IMM-4348-98
BETWEEN:
ROMAULDO ROSETTE CACAPIT
Applicant
-and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent
REASONS FOR ORDER
EVANS J.:
[1] This is a motion by the applicant, a permanent resident of Canada, for a stay of the execution of an order dated August 5, 1998 for his removal on August 27, 1998 from Canada to the Philippines, his country of citizenship. This order was made pursuant to a deportation order made on July 22, 1998, which was based on the applicant's conviction in March of this year of a sexual assault on the five year old daughter of his common law
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partner. The applicant was sentenced to six months' imprisonment for this offence, which he has now served, and is currently on probation.
[2] The applicant filed with this motion an application for leave to commence an application for judicial review of both the Minister's opinion formed pursuant to section 70(5) of the Immigration Act that the applicant's presence poses a danger to the public in Canada, and the deportation order. Despite the formal deficiencies in the documentation filed by the applicant in this matter, given the urgency of the situation I am prepared to consider the motion on its merits. However, having read the applicant's written material, and having heard by telephone conference submissions from both parties, I have decided to deny the stay.
[3] The principal reason for my decision is that the applicant has not satisfied me that there is a serious issue to be tried with respect to either the validity of the "danger to the public" opinion, or the deportation order. As for the former, while it is true that the applicant has no previous convictions, the nature and gravity of the offence is such that it could not possibly be said that the opinion that the applicant poses a danger to the public in Canada is so unreasonable that no person could reasonably have come to the same conclusion.
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[4] As to the deportation order, I understand counsel for the applicant to have argued that, since the applicant was, for financial reasons, not able to be legally represented at the hearing held prior to the making of the deportation order, the order was invalid because it was made in breach of the duty of fairness. There is no evidence that the applicant requested and was refused an adjournment of the hearing while he applied for legal aid so that he could retain counsel. Accordingly, the immigration officer conducting the hearing was entitled to proceed, even though the applicant appeared without representation, and to make a deportation order against him. Moreover, given the limited scope of the inquiry needed to determine whether a deportation order should issue in this case, it is difficult to see what prejudice the applicant could have suffered as a result of being unrepresented by legal counsel.
[5] While this is sufficient to dispose of this matter, for the sake of completeness I should add that I agree with the submissions of counsel for the respondent to the effect that, in any event, the applicant had not demonstrated that his deportation would inflict irreparable harm. His removal to the Philippines would not prevent him from pursuing his application for leave, and would not render nugatory the Court's jurisdiction over it. Nor, especially in view of his recent history, would his forced separation from his family, and his inability meanwhile to provide financial support, constitute irreparable harm. As for the balance of convenience, there seems little in this case to be set against the public
interest in the due enforcement of the removal order, particularly in light of the applicant's failure to pursue legal redress without delay.
[6] For these reasons, I dismiss the applicant's motion for a stay.
OTTAWA, ONTARIO John M. Evans
August 28, 1998. J.F.C.C.
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-4348-98
STYLE OF CAUSE: ROMAULDO ROSETTE CACAPIT v. MCI
PLACE OF HEARING: MATTER HEARD VIA TELECONFERENCE BETWEEN OTTAWA, ONTARIO AND EDMONTON, ALBERTA
DATE OF HEARING: AUGUST 27, 1998
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE EVANS, DELIVERED FROM THE BENCH
DATED: AUGUST 28, 1998
APPEARANCES
MR. HAMISH J. D. HENDERSON FOR THE APPLICANT
MR. W. BRAD HARDSTAFF FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
HAMISH J.D. HENDERSON FOR THE APPLICANT EDMONTON, ALBERTA
MR. MORRIS ROSENBERG FOR THE RESPONDENT DEPUTY ATTORNEY GENERAL OF CANADA