Date: 20010420
Docket: IMM-1572-01
Neutral reference: 2001 FCT 345
Between:
David OCHOA
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
REASONS FOR ORDER
PINARD J.
[1] This motion to stay the execution of a removal order to the U.S. accompanies an application for leave and for judicial review of a decision by an Immigration officer not to postpone the plaintiff's removal until a decision is made on his application for a ministerial exemption pursuant to s. 114(2) of the Immigration Act, R.S.C. 1985, c. I-2 ("the Act").
[2] In the case at bar, even if I were to accept that there is a serious issue to be tried, without deciding the point, I am not persuaded that irreparable harm would result from the temporary separation of the plaintiff and his wife.
[3] First, there is nothing in the evidence to indicate that there is anything to prevent the plaintiff's wife following him. When the plaintiff got married after his initial application for a ministerial exemption was denied on January 5, 2000 he was well aware that he might eventually be subject to removal from Canada. The plaintiff did not file his application for a ministerial exemption until after he was summoned to the Immigration Canada offices to make departure arrangements, that is over eight months after he was told that he should file such an application and over a year after he married a Canadian. The plaintiff's explanation that he waited until his wife had reached legal age (18 years) to file his application for a ministerial exemption does not stand up, as his wife has still not reached the age of 19 required to make a sponsorship under the Act.
[4] In all these circumstances, I do not feel that the hardship that might result from a possible temporary separation of husband and wife is really irreparable harm within the meaning of the decided cases (see e.g. Kerrutt v. Canada (M.E.I.) (1992), 53 F.T.R. 93, Calderon v. Canada (M.C.I.) (1995), 92 F.T.R. 107, Banwait v. Minister of Citizenship and Immigration (April 7, 1998), IMM-1259-98 and Pavalaki v. M.C.I., [1998] F.C.J. No. 338 (Q.L.) (F.C.T.D.)).
[5] The motion for a stay is accordingly dismissed.
YVON PINARD
JUDGE
OTTAWA, ONTARIO
April 20, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Date: 20010420
Docket: IMM-1572-01
Ottawa, Ontario, April 20, 2001
Before: Pinard J.
Between:
David OCHOA
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
ORDER
The application for a stay is dismissed.
YVON PINARD
JUDGE
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-1572-01
STYLE OF CAUSE: DAVID OCHOA v. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: APRIL 12, 2001
REASONS FOR ORDER BY: PINARD J.
DATED: APRIL 20, 2001
APPEARANCES:
PAUL FRÉCHETTE FOR THE APPLICANT
MARIE NICOLE MOREAU FOR THE RESPONDENT
SOLICITORS OF RECORD:
PAUL FRÉCHETTE FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada