Federal Court Decisions

Date: 19971219

Docket: IMM-2260-97

BETWEEN:

     ANGERNEE PAMELA JAGGERNAUTH

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

CAMPBELL, J.

     Let the attached transcript of my Reasons for Order delivered orally from the bench at Edmonton, Alberta, on August 21, 1997, now edited, be filed to comply with Section 51 of the Federal Court Act.

     Douglas R. Campbell

     Judge

OTTAWA, ONTARIO

THE COURT:

     These are my reasons on this application. The prime question here is the meaning to be placed on Section 18.2 of the Federal Court Act, which on the face of it provides a very broad discretion. The Section reads:

"On an application for Judicial Review, the Trial Division may make such interim orders as it considers appropriate pending the final disposition of the application."

     In this instance, the application is an originating Notice of Motion challenging a humanitarian and compassionate decision refusing the applicant's argument that there are those grounds for allowing her to stay in the country. The problem that has arisen, however, is not that particular issue, because it will definitely take its course, it is the preempting of her being able to wait in Canada for the result by a Deportation Removal Order, which is to take effect within a week. It is, of course, this Deportation Order that is really the question that needs to be addressed, and what is being applied for here is a stay of that Order.

     The argument the Crown has raised is there is no connection between the originating Notice of Motion and the Deportation Order, and then accordingly, on the various authorities that have been cited, because there is no connection or nexus, I do not have jurisdiction to exercise what appears to be a broad discretion under Section 18.2. As well there is an argument that even if I do, the merits do not allow the state to be entered.

     On the first question about the nexus, I have to say that the statute speaks to providing a very broad discretion, and there have been a number of legal opinions expressed on what it basically means. As far as I am concerned, the application of the discretion under 18.2 depends on the legal and factual merits of each and every individual case. I do not think it is wise, nor do I think it is proper to try and set standard guidelines or to say that certain things are not possible. I think every case should be dealt with on its own merits.

     I think, therefore, having said this, it is only one factor that there may or may not be a so-called nexus between the actual originating notice to challenge the decision and the Deportation Order.

     Indeed, there are competing authorities on whether the nexus is necessary. I do not intend to ground myself in that debate, because, frankly, I do not think that is the issue. The issue here is has a proper case been made out to stay the Deportation Order?

     Now, on the proper case being made out is on the merits that there is a good application here to challenge the humanitarian and compassionate grounds decision. I think that is a good argument. I think there is strong evidence to say that had the record been fuller, as it has been in the affidavit material before me, that the result may indeed have been different. It is really important in this case, and it is one of the merits that I have talked about, that the person that actually held the humanitarian and compassionate hearing went to the trouble of writing a decision and saying basically that it was a very tight case. In other words, it was a case that could have gone both ways, but it tipped against the applicant; whereas, had a little more happened, it may have tipped in the other direction. Frankly, if the record was fuller on the face of it, there is no doubt it would have tipped in the other direction. So she has a strong case.

     On the originating Notice of Motion issue, however, it is going to be still another argument to make that can new evidence be considered? In other words, the evidence that the person making the decision had was only part of the evidence. Now there is new evidence being tendered, and there still will be a decision to be made as to whether that new evidence can be considered. I have already said if that hurdle is crossed, there is probably a strong case here.

     I have been cited a case by Mr. Justice Muldoon, which sets out what may be a pattern of avoiding inevitable results here, and that is people only make applications to challenge decisions when there is a threat of removal, and often I think what is implied by that is that they are spurious and really have no merit. This is not the case here. This is a case where there is a real issue to be determined. The applicant has applied to challenge the humanitarian and compassionate Order, I think, on real grounds, not spurious grounds.

     Having said these things, I frankly think that it is important to try and balance whether it is necessary to just let the deportation go or whether it is important to stay it, pending the results of the application for leave on the challenge to the compassionate and humanitarian grounds application. I think this is a case which shows me that there is no division being made between that and the Deportation Order. They are one and the same, in fact, and I think on this balance it is important to try and see whether the tripartite test can be met to allow the stay to be entered.

     On the issue about whether there is a strong case or whether there is a good issue to be tried, I think I have already said there is, so that particular test is met. On the question of whether there is irreparable harm, again, the evidence on the natural challenge will have to be expanded to have this succeed, but I am impressed by the psychological report by Dr. Keep, which, to my observation, does substantiate the fact that were Ms. Jaggernauth required to be relieved or removed from the country there would be irreparable harm to her. I know there is a line of authority which talks about the level that must be reached to get there. I am satisfied the level is reached in this case on the merits, and accordingly, that ground is as well proved.

     The third is whether balance of convenience lies with her. There is no doubt about that. To have her leave the country at this point will produce an inconvenience way in excess than the Minister simply waiting until the leave application is granted or not. So I find the tripartite test is met.

     What I think is necessary is only to have to stay the Order until the leave application is dealt with. If the leave application is denied, the stay ends. If the leave application is granted, this stay ends but will have to be removed, if, in fact, there is a successful challenge for an application before a Court to hear the challenge. All I'm granting today is a stay of a Removal Order pending a decision on leave.

     What will be necessary is to have this issue, if it is necessary, to be raised once again after the leave issue is determined; and I think what I have done is probably only provided a small piece of time here, because the case has been outstanding since May, and this is August. I frankly do not know what to expect here in terms of when the answer might come, but soon might be the best way to put it.

     I think, Mr. Peterson, what you should do is prepare yourself to make this application the day the leave question is decided, depending on the outcome. If you are not successful in your leave application, you will not be doing that, because there is nothing left to argue. If you are successful, then you will have to argue again.

MR. PETERSON:

     So if the application for leave is accepted, the stay ends.

THE COURT:

     If it is accepted, you are going to have to make your argument again, pending the outcome of that hearing, for the Deportation Order to be stayed yet once again.

     Thank you for your arguments.