Date: 20011101
Docket: IMM-2190-01
Neutral citation: 2001 FCT 1191
Toronto, Ontario, Thursday the 1st day of November, 2001
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
LUIS ALBERTO VELIZ BARRIOS
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is a motion by Luis Alberto Veliz Barrios (the "applicant") for an order staying his deportation to Guatemala. The deportation is scheduled for November 5, 2001.
[2] The applicant is a citizen of Guatemala who came to Canada in July, 1996 and made a claim to be a refugee which was dismissed in February, 1999. The board member found the applicant's evidence not to be credible. Part of his evidence was to the effect that he had claimed to have been a member of ORPA, an alleged terrorist organization in Guatemala.
[3] In December, 1996, the applicant was convicted of two offences, driving with over 80 mg of alcohol in his blood and leaving the scene of an accident.
[4] The applicant married his Canadian wife on March 21, 1998 and she is now pregnant.
[5] As part of the review of the applicant's application for H & C considerations, the officer obtained information about ORPA from a source other than the file and the applicant was not notified of this information or given an opportunity to comment on the information obtained about ORPA.
[6] In 1994, the applicant was charged in California with the offence "carry a loaded firearm in a public place". There was no disposition of the charge. At the time, the applicant was a security guard and was authorized to carry a loaded gun while at work but he was not authorized to have a loaded gun when not at work. This fact he stated he was not aware of.
[7] The immigration officer found that the charge in California was equivalent to the charge in Canada pursuant to section 87 (now section 88) of the Criminal Code, R.S.C. 1985, c. C-46, of being in possession of a weapon for a purpose dangerous to the public peace or for the purpose of committing an offence.
Issue
[8] Should an order issue granting a stay of the removal order?
Analysis and Decision
[9] It is now accepted that a removal officer has some discretion and may, in certain situations, stay the removal of the applicant (see Wang v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 295 (F.C.T.D.)).
[10] In order to obtain a stay, the applicants must satisfy the requirements set out in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.) at page 305:
This Court, as well as other appellate courts have adopted the test for an interim injunction enunciated by the House of Lords in American Cyanamid Co. v. Ethicon Ltd. [1975] A.C. 396 [Footnote 3 appended to judgment]. As stated by Kerans J.A. in the Black case supra:
The tri-partite test of Cyanamid requires, for the granting of such an order, that the applicant demonstrate, firstly, that he has raised a serious issue to be tried; secondly, that he would suffer irreparable harm if no order was granted; and thirdly that the balance of convenience considering the total situation of both parties favors the order.
The applicants must meet all three branches of the tri-partite test.
[11] Serious Issue
The applicant has raised the following as serious issues to be tried:
1. Did the officer err in law in relying on evidence about the nature of ORPA without giving the applicant notice of its intent to do so and without giving the applicant an opportunity to respond to it?
2. Did the tribunal err in law in concluding without evidence that the applicant's offence in the United States was equivalent to an offence in Canada?
3, Did the tribunal err in law in concluding that the applicant was a member of ORPA?
I am satisfied that the applicant has raised a serious issue to be tried.
[12] Irreparable Harm
The applicant, if removed from Canada before the judicial review application is determined, will face a lengthy and difficult process to reenter Canada. His wife is not a citizen of Guatemala and may not even be able to stay there for an extended period of time. If the judicial review leave is granted and the applicant is successful on the officer's findings concerning the weapon charge in the United States or the finding that he was involved in an organization that engaged in terrorist acts, he would still have the driving offences, but he may well be able to obtain a pardon for these offences. The Minister could decide that he was rehabilitated and then he would not be inadmissible. In my opinion, it would create irreparable harm to the applicant to remove him to Guatemala now before the issues are resolved in the judicial review.
[13] Balance of Convenience
The Minister is charged with the responsibility of removing the applicant pursuant to section 48 of the Immigration Act R.S.C. 1985, c.I-2 "as soon as reasonably practical". The applicant has been in Canada since 1996 and has not committed any new offences after December, 1996. The applicant has not been detained. In light of the applicant's situation, I am of the view that the balance of convenience favours the applicant.
[14] The removal order issued against the applicant is stayed until the later of the date on which the application for judicial review is finally dealt with or until his application for H & C consideration is dealt with.
ORDER
IT IS ORDERED THAT:
1. The removal order issued against the applicant is stayed until the later of the date on which the application for judicial review is finally dealt with or until his application for H & C consideration is dealt with.
"John A. O'Keefe"
J.F.C.C.
Toronto, Ontario
November 1, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2190-01
STYLE OF CAUSE: LUIS ALBERTO VELIZ BARRIOS
Applicant
- and -
MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MONDAY, OCTOBER 29, 2001
REASONS FOR ORDER
AND ORDER BY: O'KEEFE J.
DATED: THURSDAY, NOVEMBER 1, 2001
APPEARANCES:
Mr. Lorne Waldman
FOR THE APPLICANT
Mr. Martin Anderson
FOR THE RESPONDENT
SOLICITORS OF RECORD: JACKMAN, WALDMAN & ASSOCIATES
Barristers & Solicitors
281 Eglinton Ave. East
Toronto, Ontario
M4P 1L3
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
FOR THE RESPONDENT
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20011101
Docket: IMM-2190-01
BETWEEN:
LUIS ALBERTO VELIZ BARRIOS
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER