Date: 20011220
Docket: IMM-5452-01
Neutral citation: 2001 FCT 1413
BETWEEN:
BEVERLEY RYAN and CEASAR MACKENZIE NICHOLAS RYAN by his
litigation guardian BEVERLEY RYAN
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] These are my reasons arising out of a motion on behalf of the applicants for an order staying their removal from Canada to St. Vincent.
[2] Ms. Ryan arrived in Canada in 1992 as a visitor. In her affidavit sworn in support of the motion for a stay she swore that she is a citizen of St. Vincent and of Trinidad; she left St. Vincent when she was only one and a half years old when her mother took her to live in Trinidad; she lived in Trinidad until she came to Canada; after her visitor's visa expired she decided to stay in Canada to make a better life for herself and her family; several years later she filed a refugee claim; she has one son 19 years of age who lives in Trinidad with Ms. Ryan's mother; she sends her son and mother in Trinidad $100 each month, and they rely on this money; Ms. Ryan has a 4-year-old son born in Canada, MacKenzie, who is presently enrolled in junior kindergarten; Ms. Ryan is separated from MacKenzie's father; if deported Ms. Ryan will have no choice but to take MacKenzie with her; Ms. Ryan has no family in St. Vincent and if returned there she will have no place to live or work; Ms. Ryan advised an immigration officer that she would prefer to go to Trinidad where her mother is, but the officer told Ms. Ryan that he did not care and that because she came to Canada from St. Vincent she would be returned to St. Vincent; Ms. Ryan also has a daughter living in Canada who is a citizen of Trinidad; if Ms. Ryan is removed her daughter will be alone in Canada; in July 2001 an application was filed on Ms. Ryan's behalf which requested landing from within Canada on humanitarian and compassionate grounds.
[3] The Minister opposed Ms. Ryan's motion for a stay, and filed in opposition an affidavit sworn by the enforcement officer assigned to carry out the applicants' removal. In that affidavit the enforcement officer swore, among other things, that: Ms. Ryan's claim for refugee status was unsuccessful; in those refugee proceedings Ms. Ryan based her claim to Convention refugee status on her involvement with the St. Vincent Labour Party, and told the Immigration and Refugee Board that she had not lived in St. Vincent since the spring of 1992; an application for leave in respect of the negative Convention refugee decision was denied by this Court; a Post-Determination Refugee Claimant in Canada application was refused; thereafter Ms. Ryan failed to appear for her scheduled removal on July 13, 2001; Ms. Ryan's daughter is without status in Canada, and while she remains at large there is currently an outstanding warrant for her arrest; in the officer's view the applicants' circumstances do not warrant the exercise of a positive discretion to defer removal; the officer denies that Ms. Ryan told him that she was a citizen of Trinidad or that she requested that she be returned to Trinidad and not St. Vincent.
[4] The test for the granting of a stay of execution is well-known. There must be a serious issue to be tried in the underlying application, it must be shown that the applicants will suffer irreparable harm if the stay is not granted, and the balance of convenience must favour the applicants.
[5] In the present case, I am prepared to accept that a serious issue is raised as to whether, when the best interests of a child are at issue, fundamental justice requires consideration of a "better" available destination for removal.
[6] Notwithstanding this, I am satisfied that the applicants have failed to establish irreparable harm should they be removed from Canada. Irreparable harm was argued to exist in that, absent a stay of execution, the underlying application for judicial review would be rendered moot, Ms. Ryan would be indefinitely separated from her daughter in Canada, and MacKenzie, a Canadian citizen, would be forced to leave Canada and forced to leave school, thereby losing this school year.
[7] I shall deal with each asserted basis of irreparable harm in turn.
[8] In some circumstances, this Court has held that the loss of the benefit of the application for judicial review constitutes irreparable harm, see for example: Melo v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. 403 (T. D.). However, in my view, one cannot lose sight of the somewhat unique nature of a motion to stay when it is sought in respect of a decision of a removal officer not to defer removal. Just as granting a stay in this circumstance gives to the applicant the result which the removal officer refused before the merits of the underlying application have been decided, refusing a stay allows for the execution of the impugned removal order prior to the hearing of the application for judicial review. In that "either or" circumstance it seems to me that something more than mootness must be established in order to constitute irreparable harm. Otherwise, by definition irreparable harm would exist whenever the validity of a decision not to defer removal is put in issue.
[9] As for the separation of Ms. Ryan from her daughter, Ms. Ryan failed to mention in her affidavit that her daughter has no legal status in Canada and is the subject of an arrest warrant. In that circumstance it makes no sense to argue that Ms. Ryan should be allowed to stay in Canada so as to be near to her daughter.
[10] As for the effect of removal on MacKenzie, his situation must be viewed in the context of the facts of this case. Loss of a school year may in some circumstance establish irreparable harm. That is not the case here where MacKenzie started junior kindergarten in September, and the only evidence is that he loves his school, his teachers, and the other students and is doing well.
[11] There is similarly no evidence that the applicants face any risk if removed to St. Vincent.
[12] In seeking to persuade the removal officer to defer the removal, counsel pointed to no evidence of hardship other than that which is necessarily incidental to deportation. As Justice Pelletier noted in Melo, supra, and I agree, deportation is accompanied by forced separation and heartbreak. If irreparable harm is to retain any meaning at all, it must encompass prejudice beyond that which is inherent in deportation itself. Prejudice of that sort has not been established in the case before me and I am therefore satisfied that the applicants have failed to establish irreparable harm.
[13] As the applicants have failed on the issue of irreparable harm, and because the tripartite test for a stay is conjunctive in nature, it follows that the motion for a stay should be dismissed on this basis. However, in the particular facts of this case I wish to comment as well on the balance of convenience.
[14] In Membreno-Garcia v. Canada (Minister of Employment and Immigration), [1992] 3 F.C. 306 (T.D.), Justice Reed stated, at paragraph 18, that what is in issue when considering the balance of convenience is the extent to which the granting of a stay might become a practice which thwarts the efficient operation of the immigration legislation. In Justice Reed's words "[t]here is a public interest in having a system which operates in an efficient, expeditious and fair manner and which, to the greatest extent possible, does not lend itself to abusive practices. This is the public interest which in my view must be weighed against the potential harm to the applicant if a stay is not granted".
[15] A necessary corollary, in my opinion, is that the Court must be careful not to countenance abusive practices.
[16] In the present case, Ms. Ryan, sought a stay which is in the nature of equitable relief. Ms. Ryan asserted under oath facts that were contrary to those which she advanced, under oath, before the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD"). Notably, while she swore in this proceeding that she left St. Vincent when she was one and a half years old, which would have been in or about 1962, the CRDD stated in its reasons that the evidence before it was that Ms. Ryan had been involved with the St. Vincent Labour Party, and that she left St. Vincent and came to Canada after an incident were she was attacked in February of 1992. This 30 year discrepancy is crucial to her claim on this motion for a stay on the ground that she has no connection to St. Vincent.
[17] As well Ms. Ryan argued irreparable harm to flow from separation from her daughter in Canada without disclosing her daughter's lack of status in Canada.
[18] Those who come to this Court seeking equitable relief must themselves do equity in accordance with the maxim that they who seek equity must do equity in the popular sense of what is right and fair. This includes providing evidence which is full, honest and candid.
[19] This means, among other things, that in an unusual case where sworn testimony is proffered which is contrary to evidence proffered under oath on a prior occasion that an explanation should be provided for the discrepancy. This is particularly so where, as in the present case, the evidence touches on a point central to the motion for a stay.
[20] Therefore for Ms. Ryan to assert hardship in being returned to a place which she left at the age of one and a half years old, if that in fact was the case, she was obliged to disclose and explain why it was that her evidence before the CRDD was that she left St. Vincent some 30 years later.
[21] For the foregoing reasons, I concluded that the facts of this matter did not demonstrate that irreparable harm would be suffered by the removal of the applicants. In view of the interests of MacKenzie, which must be viewed in a light independent of his mother's conduct, I based my decision on the ground of irreparable harm. In the result, the motion for a stay was dismissed.
"Eleanor R. Dawson"
Judge
Ottawa, Ontario
December 20, 2001
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-5452-01
STYLE OF CAUSE: Beverley Ryan and Other v. MCI
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
REASONS FOR ORDER
AND ORDER OF: The Honourable Madam Justice Dawson
DATED: December 20, 2001
WRITTEN REPRESENTATIONS BY:
Ronald Poulton FOR THE APPLICANT
Kareena R. WildingFOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mamann & Associates FOR THE APPLICANT Toronto, Ontario
Mr. Morris Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada