Date: 19990514
Docket: IMM-1483-99
BETWEEN:
ADA FRANCIS BETANCOUR DE INCER
JAIRO INCER BETANCOUR
ALEX JARED INCER BETANCOUR
FRANK ROGET INCER BETANCOUR
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[Delivered from the Bench at Toronto, Ontario,
on March 29, 1999, as edited and expanded]
LEMIEUX J.:
[1] The applicants, on March 24, 1999, moved the Court for an order staying their removal to the United States scheduled for Tuesday, March 30, 1999, at 9:00 a.m.
[2] The execution of the removal order was set into motion by a letter, sent by regular mail, dated February 11, 1999, from a Citizenship and Immigration Canada ("CIC") Enforcement Officer.
[3] I heard the matter in Toronto on March 29, 1999 and, after delivering short oral reasons, I ordered the stay of execution of the removal order until the applicants' application for leave and judicial review dated March 24, 1999 had been decided.
[4] I now expand on those reasons.
[5] Ada Francis Betancour de Incer, one of the applicants, was the deponent to the affidavit in support of the stay motion.
[6] What Mrs. de Incer says in her affidavit is this:
| (a) She came to Canada in August 1993 with her husband and their son Jairo, all citizens of Nicaragua and made refugee claims. Their refugee claims were dismissed; all three are subject to deportation. |
| (b) There are two other children of the marriage both born in Canada, Alex, 5 years old and Frank who will soon be four. |
| (c) She has been the victim of physical and sexual abuse at the hands of her husband since 1995. She had lodged several complaints to Toronto Metro Police. The children suffered emotional abuse from their father. In May 1998, she separated from her husband, has custody of the children, has a full-time job and a part-time job to support her children. She still continues to receive threats and to be harassed by her husband. |
| (d) She expresses concern about her removal to Nicaragua because her husband is also subject to deportation to that country. She says: |
| (i) violence against women in Nicaragua fails to be protected. |
| (ii) her husband is likely to obtain custody of her children there because of his background, influence and because her job prospects are bleak; |
| (ii) she fears the breakup of her children; the two Canadian born children cannot be deported. If she leaves them in Canada, the family breaks up and there is a likelihood of them becoming wards of the State. If she brings them to Nicaragua, they all face the perils previously mentioned. |
| (e) A PDRCC application was made about a year ago. It covered her husband and herself and their eldest son Jairo. No mention was made in that application about the abuses; it was only recently she spoke openly about the matter. The application, which would have provided a risk assessment, was rejected recently. CIC notified her husband and she only found out about the rejection early in March. |
| (f) On April 7, 1998, a section 114(2) of the Immigration Act ("the Act") application for permanent residence in Canada processed in Canada was made to CIC invoking compassionate and humanitarian grounds. CIC did not know in that application about the separation and custody of the children. CIC now knows but this is only a recent fact. The explanation given by Mrs. de Incer is she proposed to disclose this state of affairs during her expected interview with CIC officials. |
| (g) She applied to the Court as soon as she realized that her H & C application would not be processed before the scheduled removal date. |
ANALYSIS
[7] This motion was argued on the basis of the three-part test for granting stays namely, serious issue, irreparable harm and balance of convenience.
[8] My task was greatly simplified by counsel for the Minister who, at the hearing, conceded the applicants met the irreparable harm and balance of convenience test. Counsel for the Minister argued solely on the basis that there was no serious issue involved in the stay application.
[9] The Supreme Court of Canada in RJR MacDonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. 311, at page 337, said that the threshold on the serious issue prong was a low one and the judge on the application must make a preliminary assessment of the merits of the case. The Supreme Court of Canada, in the type of case such as the one before me, stated once satisfied the application is neither frivolous nor vexatious, the motion judge should proceed to consider the second and third elements of the test.
[10] The applicants say the application raises two serious issues: a requirement in the circumstances at hand for a risk assessment before removal is effected and the delay in processing the H & C application.
[11] On the first issue, applicants' counsel cites Fahardi v. M.C.I., March 20, 1998, IMM-3846-96, where a removal order was quashed because an assessment of risk to the applicant was not made. The claim was anchored on sections 7 and 12 of the Charter. The motion was appealed to the Federal Court of Appeal and judgment is pending.
[12] Other jurisprudence was cited in support and I mention the following:
| (a) Grewal v. Canada (1991), 85 D.L.R. (4th) 166 (F.C.A.) for the proposition that section 7 of the Charter requires a refugee claimant be given ample opportunity to have new evidence of potential persecution in the home country heard and fully considered by an administrative body; |
| (b) Sivakumar v. Canada, A-30-96, May 24, 1996, (F.C.A.), where the Court stayed the removal to Sri Lanka of a failed refugee claimant because a serious Charter issue was raised; |
| (c) Chieu v. Canada, A-1038-96, December 3, 1998, (F.C.A.), for the proposition that section 114(2) of the Act was an appropriate vehicle amongst others to bring to the attention of the Minister risk concerns about the country to which the person was being removed. |
[13] Counsel for the Minister argued that none of the cases relied on by the applicants were of any relevance to the case at bar because they involved issues of persecution, death and torture.
[14] When I asked counsel for the Minister whether there were any cases decided by this court on the issue of the need for risk assessment in the context of gender and child abuse or peril, he replied in the negative although he indicated that issues surrounding custody was covered in Langer v. Canada (1995), 184 N.R. 352.
[15] Counsel for the applicant replied by invoking Canada's obligations under the Convention of the Child in the context of the Baker case pending decision before the Supreme Court of Canada.
[16] I concluded the question of whether the law compelled a requirement for risk assessment related to gender and child abuse or peril in the country of removal was a serious issue.
[17] The second serious issue invoked by the applicant related to delay in processing the H & C application. Applicants' counsel cited jurisprudence of this court that delay in processing an H & C application may be grounds for mandamus. In this case, the applicants received a letter from CIC dated September 23, 1998, stating that "you will be advised by this office within six months of the deposition of your case".
[18] The respondent contends that the real H & C application which the court was dealing with was the application filed in March 1999 which CIC only received two weeks ago. It was also submitted in connection with the original H & C application filed on April 7, 1998, the applicants had no legal basis for thinking Mrs. de Incer would be interviewed and would then have an opportunity to sever her H & C application from that of her husband's.
[19] Counsel for the respondent added that the remedy for delay would be via mandamus and not an attack on the removal order which is presumed valid and enforceable.
[20] The applicants' case is weaker on this branch but is it frivolous and vexatious? I thought not because the original H & C application had been made a year before, Mrs. de Incer informed CIC in August of 1998 she wanted her application severed, CIC wrote in September on the six-month response lapse time creating some legitimate expectation about a possible interview and resolution of her H & C application before removal.
[21] For these reasons, the stay of removal order is granted until leave and judicial review application is determined.
J U D G E
OTTAWA, ONTARIO
MAY 14, 1999