Date: 20031216
Docket: IMM-9530-03
Citation: 2003 FC 1477
BETWEEN:
ALICIA THOMAS
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
INTRODUCTION
[1] By motion filed the 3rd of December, 2003, the Applicant seeks the following relief:
(1) An order of a stay of the execution of the Removal order [outstanding against the Applicant] until such a time that is the latest of (a) the underlying Application for Judicial Review in this matter is disposed; (b) the Application for Leave of the decision of the Risk Assessment officer's decision in file number Imm-9122-03 and (c) the Application for landing is processed;
(2) Cost of the motion; and
(3) Such other Orders as Counsel may advise and this Court may allow.
[2] The "underlying Application for Judicial Review in this matter" is an application for leave and for judicial review of a decision of an Expulsions officer who rejected the Applicant's request for deferral of her removal from Canada until such time as her outstanding application for landing from within Canada on humanitarian and compassionate grounds is determined. The decision is dated the 2nd of December, 2003 and, at the time this motion came on for hearing before the Court on the 8th of December, 2003, removal was scheduled to Jamaica for the 12th of December, 2003.
[3] No motion for a stay of removal was filed on behalf of the Applicant on Court File: IMM-9122-03 on which the Applicant seeks leave and judicial review of a decision following a pre-removal risk assessment in relation to the Applicant.
[4] The Applicant filed an application for landing from within Canada on humanitarian and compassionate grounds in February of 2003. No decision has been taken on that application and there is no matter before the Court in relation to that application.
BACKGROUND
[5] The Applicant is a citizen of Jamaica born in February, 1973. She apparently lived in Jamaica until her departure for Canada. She arrived in Canada in late October, 1992. Thus, she has been in Canada for some eleven (11) years. Her life in Jamaica was a troubled one. At an early age, somewhere between the ages of twelve (12) and fourteen (14), she suffered a highly traumatic experience which she apparently disclosed to no one until after her arrival in Canada and then only to her partner in 1994 and then not again until she exposed the experience in 2002 in the course of a Convention refugee hearing. Her story of her traumatic experience was not believed by the panel considering her Convention refugee claim.
[6] The Applicant entered into a supportive relationship in Canada in 1994 and has remained in that relationship to this time. In fact, she and her partner were married in November of this year. Also very recently, the Applicant undertook an extensive psycho-social assessment the results of which were reported to her counsel and are before the Court.
THE ISSUES
[7] On this application for a stay of removal, the onus is on the Applicant to establish that the application for leave and for judicial review on the basis of which she seeks the stay of removal raises a serious issue to be tried, that irreparable harm would result if the stay of removal were not granted and that the balance of convenience is in her favour. The three (3) part test is conjunctive, not disjunctive.
ANALYSIS
i) A Preliminary Issue
[8] As earlier noted in these reasons, while the Applicant seeks a stay only on the Court file relating to her application for leave and judicial review of the refusal to defer her removal, she seeks a remedy interrelated to another application for leave and judicial review which she has before this Court and to her outstanding application for landing from within Canada on humanitarian and compassionate grounds.
[9] I am satisfied that it is not open to the Applicant in this matter to seek a stay of removal that might very well extend beyond the final disposition of the application for leave and for judicial review on the basis of which she seeks the stay of her removal. Thus, if the Applicant were successful in obtaining a stay of removal, and she was, relief will only be granted until the final disposition of the underlying application.
ii) Serious Issues to be Tried
[10] Counsel for the Applicant sought deferral of the Applicant's removal in a letter dated the 28th of November, 2003 addressed to the Expulsions Officer who provided the Applicant with her "direction to report" for removal. Counsel wrote:
You have the discretion given the extraordinary facts in this case and we ask that you please exercise your discretion to save Ms. Thomas to the unpleasantness of having to face such a psychologically threatening scenario in a current society that would likely expose her to further risk.
The Expulsions Officer refused the deferral citing only the statutory obligation of the Minister to carry out removal "...as soon as is reasonably practicable."
[11] Counsel requested reasons of the Expulsions Officer. The Expulsions Officer denied the request indicating in notes to file appended to her affidavit herein that such a request for reasons "...must be made through privacy co-ordinator." I am satisfied that this response raises a serious issue to be tried on the application for leave and for judicial review that underlies the Applicant's motion for a stay of removal.
[12] It is evident from the Record filed on behalf of the Respondent on this motion for a stay that the Removals officer produced handwritten notes outlining her reasons for refusing a deferral. A refusal of deferral is a determination with potentially quite profound implications for persons such as the Applicant. Against the principles adopted by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration)[1], I am satisfied that, where reasons are recorded, as they were on the facts of this matter, and a request for those reasons is made in a timely manner, whether or not there is an obligation of the officer preparing those reasons to provide them, once again in a timely manner and not through a relatively complex and time consuming process such as that provided for in the Privacy Act, represents a serious issue to be tried.[2]
iii) Irreparable Harm
[13] Removal of the Applicant back to Jamaica, the scene of her troubled past and a country where the degree of support available to her is highly questionable would, I am satisfied, risk serious, albeit not irreparable, harm to the Applicant by reasons of what would appear on the evidence before the Court to be her vulnerable psychological state and her removal from the supportive and interdependent relationship that she has sustained over a period of some ten (10) years with the man who is now her husband. Similarly, and once again based on the evidence before the Court, I am satisfied that the Applicant's removal would result in harm to her longtime partner and now husband.
[14] Neither of those concerns, however, would lead me to a conclusion that irreparable harm would flow from the Applicant's removal if it were not for the very recent, apparently reluctant, disclosure that the Applicant's husband has a child by another woman. The child is a Canadian citizen, as is his father, and is now some four (4) years of age. By agreement between the child's mother and the Applicant's husband, the child is in shared custody with the Applicant's husband having custody of the child every second week. The mother of the child acknowledges the role of the Applicant in the support of the child during those weeks when the child is in the custody of its father.
[15] Once again, the Supreme Court of Canada in Baker, supra, teaches us that the best interest of the child must be a central concern. While the Expulsions Officer cannot be faulted for not having taken that interest into consideration when she considered the request for a deferral of removal, since the existence of the child was apparently not made known to her, now that the existence of the child is known to this Court, I am satisfied that it is an interest that must properly be taken into account in the determination of whether or not irreparable harm would flow from the removal of the Applicant at this time.[3]
[16] As earlier indicated, I am satisfied that removal of the Applicant to Jamaica at this time would likely result in serious, albeit not irreparable, harm to the Applicant. I draw this conclusion based on the psycho-social report that is before the Court. Similarly, as earlier indicated, I am satisfied that the removal of the Applicant would result in harm to her spouse, the two being substantially interdependent according to the evidence before the Court. But the principal consideration that leads me to believe that removal of the Applicant to Jamaica at this time would result in irreparable harm is the best interest of her husband's young child. That best interest, taken together with the impact of removal on both the Applicant and her husband, I conclude raises the harm that would flow from removal of the Applicant to Jamaica pending final determination of the underlying application for leave and for judicial review, to the level of irreparable harm.
iv) Balance of Convenience
[17] Given my conclusion on the issues of serious issue to be tried and irreparable harm, and given the Applicant's positive record in Canada during the relatively lengthy time she has been here, I am satisfied that the balance of convenience favours the Applicant.
CONCLUSION
[18] In the result, this motion for a stay of removal was allowed and an Order issued staying removal of the Applicant to Jamaica until after the underlying application for leave and for judicial review is finally disposed of.
__________________________
J.F.C.
Ottawa, Ontario
December 16, 2003
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-9530-03
STYLE OF CAUSE: ALICIA THOMAS v. THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: December 8, 2003
REASONS FOR ORDER BY: GIBSON J.
APPEARANCES BY:
Mr. Osbrone G. Barnwell For the Applicant
Mr. Michael Butterfield For the Respondent
SOLICITORS OF RECORD:
Hinkson, Sachak, McLeod
& Barnwell For the Applicant
Toronto, Ontario
M5V 1X1
For the Respondent
Morris Rosenberg
Deputy Attorney General of Canada
Department of Justice
130 King Street West
Toronto, Ontario
M5X 1K6
FEDERAL COURT OF CANADA
Date: 20031215
Docket: IMM-9530-03
BETWEEN:
ALICIA THOMAS
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] [1999] 2 S.C.R. 817.
[2] See Wright v. Canada (Minister of Citizenship and Immigration) (2002) 20 Imm L.R. (3) 97, where Justice Dawson wrote at paragraph [18]:
Better practice would be for an expulsion officer to give some brief explanation for the decision. However, on the facts of this case, I am not prepared to say that a serious issue arises out of the
failure of the refusal letter to contain more detailed reasons.
I am satisfied that the foregoing paragraph is distinguishable. On the facts of this matter, there was not simply a failure of the refusal letter to contain more detailed reasons. There was in fact a rejection of a request for reasons where reasons apparently existed.
[3] As to the position of an Expulsions Officer in circumstances such as those now before the Court, see: Jamal v. Canada (Minister of Citizenship and Immigration [2001] F.C.J. No. 766 (F.C.T.D.) at paragraph 7.