Date: 20011206
Docket: IMM-5489-01
Neutral Citation: 2001 FCT 1345
BETWEEN:
RICARDO JAVIER GUERRA-PARRALES
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This matter came before me on December 4, 2001 by way of an urgent application to stay a Deportation Order which was to be executed December 5, 2001. The applicant was to be returned to Ecuador. I granted the stay and indicated reasons would follow.
[2] This applicant came to Canada as a landed immigrant accompanying his parents in 1974, at the age of 5 years. He married his present spouse in 1989. Two children were born of this marriage, one in 1989 and the other in 1990.
[3] In 1991, he was convicted of trafficking in narcotics, sentenced to 5 years and 9 months of imprisonment but was released on parole in 1992. In 1994, a further narcotics offence occurred and he was sentenced to 2 years and 9 months of imprisonment. He has not been convicted of any further offences since that date. The record reveals that he was a drug addict.
[4] An application was filed pursuant to section 70 of the Immigration Act
in September, 1993, seeking relief from the outstanding Deportation Order made against him in November, 1992. The Appeal Division of the Immigration and Refugee Board was satisfied at that time that he was making his best efforts to avoid narcotics and ordered a five year stay of the execution of the Deportation Order.
[5] In 1997, the Minister brought an application to the Appeal Division of the Immigration and Refugee Board to cancel the stay granted in November, 1993. This application was based on the subsequent conviction in 1994.
[6] At that time, the relationship between the applicant and his spouse was "on the rocks"; he had "quit his job and went back to his old crowd". In evidence at the time of the hearing in 1997, the applicant's wife indicated that he now spent more time with his family and that he was remorseful. Little weight was given to this evidence. Among the conclusions reached in the decision were the following:
"It is clear that Mr. Guerra-Parrales has not established himself in Canada. It is also clear that in addition to the damages he has caused to his family and his dealing in a major way in illicit drugs, the financial cost to Canadian society has also been and continues to be extensive."
[7] The Chairman determined that the applicant was unreliable and also wrote the following:
"While the federal parole officer was supportive, efforts to succeed on the methadome program was for high addictive individuals; he was a high risk case and doubted that someone at liberty would continue on this program."
[8] There was a finding of fact that he tested positive for morphine in January, 1997 and CSC psychological services indicated that he had "slipped" on six occasions and that their were more difficulties in the marriage once again. The Chairman concluded that the applicant had little to do with the children and that these factors did not weigh in his favour.
[9] The stay was cancelled and the Deportation Order was to be executed as soon as reasonably practicable.
[10] On October 18, 2001, counsel for the applicant filed a motion with the Appeal Division of the Immigration and Refugee Board to reopen the matter. In support of this application, affidavit evidence filed indicated that the applicant had been absolutely drug free since 1997; that he was the sole bread winner for his wife and two pre-teen daughters; that his wife was a partial epileptic and could not seek employment outside the home; there had been no criminal offences since November, 1994; that he had now become very close to his daughters and that he had been an adherent to a methadone program since 1997 and was a faultless participant. This fact was supported by the attending physician at the clinic; in his report he wrote that the applicant is verified weekly, subjected to urine drug screenings.
[11] Further evidence reveal that the applicant and his wife purchased a home in 1999 with a $25,000 down payment; that he was responsible for maintaining mortgage payments as well as all other household expenses.
[12] Counsel further submitted in his motion that there were new circumstances and a hearing on the merits should be considered.
[13] In a letter dated November 20, 2001, the Appeal Division of the Immigration and Refugee Board replied as follows:
"The Appeal Division orders that the motion be denied."
[14] On November 22, 2001, counsel wrote back requesting written reasons for the decision.
[15] By letter dated November 30, 2001, the Appeal Division replied acknowledging the request for reasons and stating the following:
"Please be advised that the Presiding Member is not providing written reasons as there is no statutory requirement for written reasons on motion."
[16] As Lutfy A.C.J. pointed out in Hall v. Canada [1998] F.C.J. 1127:
"Even if the Appeal Division made its own determination as to whether the applicant is a permanent resident, and I have serious doubts in this regard, it failed to disclose in writing its own reasons for such a determination. This falls short of the statutory requirement in subsection 69.4(5) and constitutes an error in law."
[17] Furthermore, as counsel for the applicant pointed out in his submissions:
"The Supreme Court of Canada in Grillas has recognized that the Appeal Board has an ongoing jurisdiction to consider whether or not to hear new evidence, and then to hear the evidence, at any time prior to removal. As such, the appeal process is an open ended one. It is submitted that a motion to re-open is part of the appeal process and that by operation of statute, a decision on any facit of that process must be accompanied by reasons, when so requested."
[18] Accordingly, it is clear that the Appeal Division in the present case erred in law when it concluded that there is no requirement for it to provide reasons.
[19] I am satisfied that circumstances in the present case have changed considerably since the review of 1997 and fairness alone requires that the Appeal Board reopen this matter. Counsel for the Crown submitted for my consideration a decision of my brother McKeown J. in A.B.Z. v. The Minister of Citizenship and Immigration, (2001) F.C.T. 533. His comments reinforce my view of this situation when he repeated the test as outlined earlier by Reed J.:
"... In order to justify reopening, it seems to me the proffered evidence need only be such as to support a conclusion that there is a reasonable possibility as opposed to probability that it could lead the Board to change its original decision."
[20] For all of these reasons, I am satisfied that the applicant has met the three-prong test of serious issue, balance of convenience and irreparable harm. The application for a stay is therefore granted.
JUDGE
OTTAWA, Ontario
December 6, 2001
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-5489-01
STYLE OF CAUSE:Ricardo Javier Guerra-Parrales v. M. C. I.
HEARING VIA TELECONFERENCE: From Ottawa
DATE OF HEARING: December 4, 2001.
REASONS FOR ORDER BY:The Honourable Mr. Justice Rouleau
DATED: December 6, 2001.
APPEARANCES:
MR. RONALD POULTON for the Applicant
MS. KAREENA WILDING for the Respondent
SOLICITORS OF RECORD:
Mamann & Associates for the Applicant Toronto, Ontario
Mr. Morris Rosenberg
Deputy Attorney General of Canada for the Respondent