Date: 20000706
Docket: IMM-3047-00
BETWEEN:
FREDDY ALBERTO VALENCIA, LINDA MARGARET KAUZLARICH
and OSCAR DAVID VALENCIA and JACOB ALEXANDER VALENCIA,
by their Litigation Guardian, LINDA MARGERET KAUZLARICH
Applicants
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] This is an application for stay of a deportation order which was to be executed June 20, 2000.
[2] I heard this application at Toronto on June 19, 2000. I granted the stay, subject to brief reasons to follow.
[3] Mr. Valencia is a citizen of Columbia who first came to Canada in 1987 and claimed refugee status. This was denied, as well as leave for judicial review of the decision.
[4] A further application under the post-determination refugee claimants class was also refused by letter dated November 5, 1999.
[5] The applicant was married to Linda Margaret Kauzlarich, a Canadian citizen, and two children were born of this union, Oscar David Valencia born September 5, 1989, and Jacob Alexander Valencia born September 1, 1997. Both of the children are Canadian citizens.
[6] The applicant was convicted of conspiracy to traffic in narcotics on January 11, 1990 and was sentenced to four and a half years in penitentiary. After serving only 10 months in jail he was paroled and his parole ended in July, 1994. In July, 1999, he became eligible for a pardon and retained a consultant to file a pardon request in the summer of 1999. He was advised to report to Immigration authorities in April, 2000, and it was at that time that they discovered while checking with the Pardon Board that the consultant had not yet filed a request for a pardon. This was eventually done in late April, 2000, approximately one year after he was eligible to seek and obtain a pardon.
[7] The applicant"s wife has now filed an application dated June, 1999, wherein she indicates she wishes to sponsor him for an application for landing from within Canada. This application was acknowledged as having been received by the Case Processing Centre in Vegreville, Alberta, in September, 1999, which confirmation also advised that they have transferred it to the Canadian Immigration Centre in Woodbridge for processing.
[8] An application was also filed for a decision based on human and compassionate grounds pursuant to subsection 114(2) of the Act.
[9] It is evident from the contents of this application and the applicant"s file that he has not been engaged in any criminal activity since being released in 1990.
[10] It is alleged that he spends a great deal of time with his two children and has a very close association with the older one, being coach of his soccer team he attends all games. He has been working at Land Rover in Toronto since 1993 and also has a small cleaning company employing three Canadians which contracts for the cleaning of various auto dealerships and this is done in the evenings and on weekends. He is the only support of his wife and two children since she remains at home to care for the family.
[11] Most of this applicant"s family also lives in Canada, his mother, two sisters and two brothers, three of which are now Canadian citizens. He feels that he could be persecuted should he return.
[12] It is well recognized that the U.N. Commission on human rights has repeatedly criticized the situation in Columbia. The applicant alleges a number of his relatives have already been murdered in the country and that his one remaining brother, because of threats, left and moved to Panama. He argues that if he was removed, there is no doubt that his wife and two children would not accompany him and that they would have no visible means of support. The children would lose the guidance of a father who apparently has remained free from trouble with the law, employed and sustaining his wife and two children financially.
[13] It is apparent to me there are two grounds on which this applicant could be favourably looked upon by the Immigration Department. Through the sponsorship of his Canadian citizen wife; the fact that he will shortly receive a pardon since he was eligible to apply since July of the year 1999. There is also a possibility that the humanitarian and compassionate application would be successful.
[14] An analysis of the tri-partied test with respect to whether or not there is a serious issue is mandatory. This is not a frivolous or vexatious application. There is no doubt that the determination of either the sponsorship or the humanitarian or compassionate application will affect the fundamental issue, the future of the applicant, his wife and children.
[15] I am satisfied that on either a humanitarian and compassionate application or based on the sponsorship, the removal of a non-citizen parent from Canada without considering the children"s interest would be a very important factor before a decision could be rendered; this also raises a serious issue.
[16] Looking at the second test, that of irreparable harm, to remove him from the country now, before he has had a further opportunity, would almost render further hearings nugatory. He would undoubtedly lose his employment as well as his cleaning business. This would bring about great hardship on the family and an indefinite separation between the father, the wife and children who rely on him for support. It would create a situation where they may have to resort to social assistance.
[17] When it comes to balance of convenience, there is no doubt that Mr. Valencia does have a prior serious criminal conviction. However, it has been ten years and he has not yet re-offended. His application for landing has been outstanding for a year. Immigration officials have delayed taking any proceedings against this gentleman until only recently. I am satisfied the balance of convenience favours the applicant in this case.
[18] There appears to be sufficient merit to warrant a reasonable hope of success and, should I fail to grant the stay, the sponsorship as well as the humanitarian and compassionate application would be frustrated.
JUDGE
OTTAWA, Ontario
July 6, 2000