Dockets: IMM-6576-04
IMM-1100-05
Citation: 2005 FC 329
BETWEEN:
LEON GRIFFITHS
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
AND BETWEEN:
LEON MELBOURNE GRIFFITHS
Applicant
and
SOLICITOR GENERAL OF CANADA and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondents
HARRINGTON J.
[1] The notice came on Thursday. Pack your bags, Mr. Griffiths, it said. You are being deported Tuesday. His lawyer wasted no time. He asked the Expulsion Officer to defer the removal until matters before this Court were resolved. The answer was no. He filed papers on Friday. A stay was granted Monday.
[2] A stay of a removal order pending resolution of an underlying legal dispute is an extraordinary remedy. Like in an interlocutory injunction, the applicant must show three things. He must show that there is a serious underlying issue to be tried; that irreparable harm would be suffered if a stay is not granted and that the balance of convenience is in his favour. This is why I granted the applications.
[3] Mr. Griffiths is 35 years of age. He came with his family to Canada from Jamaica when he was 6 years old. He has not been back. His father has since died. His mother and three siblings are all Canadian citizens.
[4] Mr. Griffiths is not a Canadian citizen as in the past he engaged in criminal activities. He was ordered deported in 1994. He appealed, and in 1995 was granted a four-year stay on conditions. One condition was that he remain crime free. He did not. He engaged in further criminal activity in 1996. In 1998, the stay of the deportation order was lifted. However, he was not deported at that time because two criminal charges were still outstanding. In January 2001, he was acquitted of one and pleaded guilty to the other.
[5] Although from that point on he could have been deported, the authorities were content to leave him alone until late 2003. At least no explanation has been given as to why steps had not been taken earlier to deport him. Meanwhile, Mr. Griffiths was getting along with his life. The evidence in the record indicates that he has been crime free, in the sense that he has committed no crimes, since 1996, is in a stable conjugal relationship, and has three children as well as a sick mother.
[6] Meanwhile, the law has not stood still either. The Immigration Act, R.S.C. 1985 c. I.-2, as amended, has been repealed and replaced by the Immigration and Refugee Protection Act ("IRPA") 2001 S.C., c.27. The differences between the two Acts, and the Regulations thereunder, could have startling repercussions for Mr. Griffiths.
[7] In December 2003, after the authorities had turned their attention to Mr. Griffiths' file, his solicitor moved that his old appeal be reopened. The solicitor was relying on the former Act and Regulations. The Minister did not file submissions on the merits. The member of the Immigration Appeal Division of the Immigration and Refugee Board who considered the application decided that the new Act applied, and dismissed the application on the grounds that there was no failure to observe a principle of natural justice. Section 71 of IRPA provides:
|
71. The Immigration Appeal Division, on application by a foreign national who has not left Canada under a removal order, may reopen an appeal if it is satisfied that it failed to observe a principle of natural justice. |
71. L'étranger qui n'a pas quitté le Canada à la suite de la mesure de renvoi peut demander la réouverture de l'appel sur preuve de manquement à un principe de justice naturelle. |
[8] The material before the member consisted of an elaboration of Mr. Griffiths' life from 1996 - on. The member noted Mr. Griffiths' affidavit, indicating that he had stayed away from criminal activities, that he was in a conjugal relationship with a partner who had given birth, had a stable job, had no relatives in Jamaica and his allegation that his life would be at risk if he were returned there. However, he was of the view that the existence of new facts was not sufficient to support a motion to reopen under section 71 of IRPA. There was simply no evidence that the Immigration Appeal Division had failed to observe a principle of natural justice on the earlier appeal. He also noted that it was open to Mr. Griffiths to ask for a Pre-Removal Risk Assessment ("PRRA") which would deal with current conditions in Jamaica. Mr. Griffiths did in fact apply for a PRRA, which was turned down 31 January 2005. With the PRRA out of the way, the Solicitor General took steps to deport him.
UNDERLYING ISSUES
[9] There are two underlying applications before this Court which have not yet been decided. The first is an application for leave and for judicial review of the decision of the Immigration Appeal Division dismissing Mr. Griffiths' application to have his 1994 appeal reopened. That matter has been assigned docket # IMM-6576-04. The other is the very-recent application for leave and for judicial review of the decision of the Expulsion Officer not to defer Mr. Griffiths' removal to Jamaica. The Expulsion Officer refused to defer the removal pending the outcome of IMM-6576-04 because:
Mr. Griffiths has a long list of criminal convictions... This long list of convictions clearly shows that Mr. Griffiths has little regard for the laws of Canada.
No mention was made of the fact that Mr. Griffiths has been crime free since 1996, of his conjugal relationship, his sick mother or his three Canadian-born children.
SERIOUS ISSUE
[10] The Supreme Court held in RJR - MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, that interlocutory relief must show a serious question to be tried. The matter should be decided by the Motions Judge on the basis of common sense and an extremely limited review of the case on the merits. Due consideration must be given as to whether the case on the merits is frivolous or vexatious.
[11] However, on a motion for stay of the Expulsion Officer's refusal to defer removal, it may be appropriate to more closely examine the merits of the underlying application (Wang v. Canada (Minister of Citizenship and Immigration), [2001] 3 F.C. 682 (Pelletier J., as he then was).
[12] The "serious look" may be subjected to severe time restraints. Mr. Griffiths was going to be removed within hours of the hearing before me. Mr. Griffiths is not to be criticized for this. His solicitor acted swiftly. There was no need for Mr. Griffiths to be given only one working day's notice.
[13] The respondents even argued that the motions should not be considered because Mr. Griffiths' counsel had not submitted a full written memorandum of fact and law as required by the Rules, so that the respondents did not know what case they had to meet. Naturally, I waived the requirement.
[14] The respondents are prone to argue, and in fact in a motion heard immediately before these motions successfully argued, that it is premature to bring on an application for a stay until a notice to report is actually issued. Having required Mr. Griffiths to seek an abridgement of the normal delays because of the extremely short notice given him, the respondents cannot be heard to complain that they were taken by surprise because his counsel did not have the time to generate a full set of written representations.
[15] In my opinion, the question of which Act applies is a most serious one and should be fully argued. Sections 190 and 192 of the transitional provision of the new Act provide:
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190. Every application, proceeding or matter under the former Act that is pending or in progress immediately before the coming into force of this section shall be governed by this Act on that coming into force. |
190. La présente loi s'applique, dès l'entrée en vigueur du présent article, aux demandes et procédures présentées ou instruites, ainsi qu'aux autres questions soulevées, dans le cadre de l'ancienne loi avant son entrée en vigueur et pour lesquelles aucune décision n'a été prise. |
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192. If a notice of appeal has been filed with the Immigration Appeal Division immediately before the coming into force of this section, the appeal shall be continued under the former Act by the Immigration Appeal Division of the Board. |
192. S'il y a eu dépôt d'une demande d'appel à la Section d'appel de l'immigration, à l'entrée en vigueur du présent article, l'appel est continué sous le régime de l'ancienne loi, par la Section d'appel de l'immigration de la Commission. |
[16] The sections do not specifically state which Act applies to a notice of appeal filed under the old Act, a decision rendered under the old Act, an appeal under the old Act and a motion to reopen that appeal after the new Act came into force.
[17] Under the old Act, the Board maintained jurisdiction with respect to stays until the moment the applicant left. (Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84.)
[18] Under the old Act, the very humane and compassionate (H & C) considerations Mr. Griffiths raises were considered on a reopening.
In each case the Board looks to the same general areas to determine if having regard to all the circumstances of the case, the person should not be removed from Canada. These circumstances include the seriousness of the offence or offences leading to the deportation and the possibility of rehabilitation or in the alternative, the circumstances surrounding the failure to meet the conditions of admission which led to the deportation order. The Board looks to the length of time spent in Canada and the degree to which the appellant is established; family in Canada and the dislocation to that family that deportation of the appellant would cause; the support available for the appellant not only within the family but also within the community and the degree of hardship that would be caused to the appellant by his return to his country of nationality. While the general areas of review are similar in each case the facts are rarely, if ever, identical.
[Ribic v. Canada (Minister of Citizenship and Immigration), [1985] I.A.B.D. No. 4 (QL), as approved in Chieu, supra.]
If he has to now file an H & C application under the new Act, he will be faced with the argument that it is not timely.
[19] The refusal of the Expulsion Officer to defer also raises serious issues. He mentioned criminality, but did not take into account that the last accusations against Mr. Griffiths go back nine years. The evidence does not clearly show he "has little regard for the laws of Canada".
[20] The Officer did not so much as even mention the children.
[21] Although an Expulsion Officer is not in position to carry out a full H & C analysis, he must take some account of the children. There is no evidence he did so. (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Wu v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 721 (QL); Thomas v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1890 (QL).
IRREPARABLE HARM
[22] The facts supporting the serious issue also lead to the conclusion that Mr. Griffiths and his children would suffer irreparable harm (Thomas, supra).
[23] The Minister's interest is in law enforcement, Mr. Griffiths' timely removal. Having been content to leave him alone for close to three years, allowing him to continue his Canadian life, he will have to await the outcome of the matters before this Court (Manvalpillai v. Canada (Minister of Citizenship and Immigration), 2003 FC 1297, [2003] F.C.J. No. 1639 (QL)).
"Sean Harrington"
Judge
Ottawa, Ontario
March 7, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6576-04 and
IMM-1100-05
STYLE OF CAUSE: LEON GRIFFITHS
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
AND
LEON MELBOURNE GRIFFITHS
and
SOLICITOR GENERAL OF CANADA and MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 21, 2005
REASONS FOR ORDER : HARRINGTON J.
DATED: MARCH 7, 2005
APPEARANCES:
Osborne G. Barnwell FOR APPLICANT
Martin Anderson FOR RESPONDENT
SOLICITORS OF RECORD:
Osborne G. Barnwell FOR APPLICANT
North York, ON
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney-General of Canada