Date: 20040116
Docket: IMM-277-04 and
IMM-291-04
Citation: 2004 FC 67
Ottawa, Ontario, this 16th day of January, 2004
PRESENT: THE HONOURABLE MR. JUSTICE MICHAEL L. PHELAN
BETWEEN:
RICHARD BHEMKUMAR SOWKEY
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION and
THE SOLICITOR GENERAL OF CANADA
Respondents
REASONS FOR ORDER AND ORDER
PHELAN J.
[1] The applicant, Richard Sowkey ("Sowkey") applied for a stay until the determination of his application(s) for leave and judicial review(s) of a deportation order given to him on Friday, January 9, 2004, removing him from Canada on the following Tuesday, January 13, 2004. An interim stay has been in place since that Tuesday afternoon.
[2] The stay application is made in respect of a leave for judicial review of:
a) a Pre-Removal Risk Assessment ("PRRA") dated January 9, 2004;
b) a refusal to defer the removal order of January 13, 2004.
For all purposes, the stay application is based on the facts and law raised in both leaves for judicial review.
[3] Sowkey is a citizen of Guyana, aged 36 years, who first arrived in Canada in March 1991 and became a landed immigrant. He is the father of a 15 year old male and acts as the father of a 17 year old male, both of whom are citizens of Canada. He and his wife have been separated since 1994.
[4] The applicant, as his counsel was quick to admit, is no angel. Indeed, he is far from it, having been convicted between 1995 and 2000 of such crimes as assault, sexual assault, forcible confinement, uttering threats, and more. Prior to his latest incarceration in prison, he was the principal caregiver and custodial parent. Thereafter and until August 2003, his wife had custody of the children.
[5] It would appear from the evidence before me that during his imprisonment, he took a number of courses and programs to assist in remedying his past behaviour.
[6] In July 2003, Sowkey was released under strict terms including being required to live with a bondsperson. He lives with and is supported by his friend and bondsperson, Vishnu.
[7] In August 2003, the children's mother "threw them out of the home". There was some evidence to suggest that for a brief period they lived in an abandoned car until taken in by the applicant's father and ultimately by Sowkey himself. There is evidence that prior to ejecting the children from their home, the mother physically abused the children and that the children were exhibiting serious behavioural problems, were truant and Children's Aid had become somewhat involved in the family affairs. There is evidence to indicate that under the father's care, many of these problems are being rectified.
[8] The applicant filed a PRRA application on June 12, 2003.
[9] On Friday afternoon, January 9, 2004, Sowkey attended at the Greater Toronto Enforcement Centre with his children to receive his PRRA decision. He was handed his negative PRRA decision and simultaneously given a deportation order. His removal was scheduled for late on Tuesday, January 13, 2004; four days or two "business" days later.
[10] It is apparent that the PRRA decision was actually made on December 3, 2003. In the intervening time, officials of the respondents occupied themselves with making arrangements to remove the applicant; all without any indication to the applicant of what was to befall he and his children.
[11] Having been given four days notice, the applicant spent the weekend trying to secure counsel which was accomplished on Monday, January 12, 2004.
[12] Counsel for the applicant immediately applied for a deferral of the removal order on the grounds that the best interests of the children had not been considered. Counsel also pointed out that the mother had forced the children into the streets; that Sowkey was the sole provider and caregiver and that there was no one else to care for them.
[13] The following day, being the day of removal, the deferral request was denied.
[14] While there are no reasons given for the denial, the officer's notes disclose that he had concluded that the children would be provided for as they have a mother and extended family. There is no evidence that arrangements had been made to care for the children and the suggestion that the mother would provide for them flies in the face of the evidence.
[15] The respondents have provided no evidence to justify the need to remove the applicant on such short notice.
[16] There is no issue that the test for the stay is that set out in Toth v. Canada (Minister of Employment and Immigration) (1988) 86 N.R. 302 (F.C.A.).
[17] On the matter of "serious issue" or at least "not frivolous and vexatious", the applicant has raised a number of issues in the context of the challenge to the PRRA decision, including:
a) whether the PRRA officer had jurisdiction to consider humanitarian and compassionate ("H & C") grounds;
b) the evidentiary standard for assessment;
c) whether a removal can be effected before the H & C assessment.
None of these issues in my view, are frivolous or vexatious. Whether they meet the test for leave need not be determined at this stage.
[18] There are also serious issues surrounding the removal order and the refusal to defer. It is evident that there was a serious misappreciation of the facts concerning future care for the children. In addition, without deciding what are the parameters of "reasonably practicable" in section 48 of the Immigration and Refugee Protection Act, S.C. 2001, c-27, as amended ("IRPA") it must encompass more than, as in this case, the administrative convenience of the respondents.
[19] With respect to irreparable harm, the harm occasioning this case is more than the natural consequences flowing from deportation. Without being provided reasonable time to make arrangements for his children, and without proper consideration of these interests, while aspects of this case closely parallel Melo v. Canada (Minister of Citizenship and Immigration) (2000) F.C.J. 403, the current circumstances are more egregious. The facts here are similar to Richards v. Canada (Minister of Citizenship and Immigration) (1999) F.C.J. 890.
[20] I find that the applicant has established irreparable harm in this particular circumstance.
[21] As to the balance of convenience, while there is a public interest in the efficient removal of those not entitled to be in the country, there are other competing public interests including those of the welfare of children, and the fairness of the removal process.
[22] The respondents have no real response to the question of why this applicant had to be removed from Canada so quickly and before the expiry of the statutory deadline of challenging such decisions. There is no evidence to suggest that the applicant is a "flight risk".
[23] I find that the balance of convenience favours the applicant. However, to ensure that there is adequate redress in the event that the applicant reoffends, conditions will be imposed on the stay ordered herein.
ORDER
[24] IT IS ORDERED that the execution of the deportation order against Richard Bhemkumar Sowkey is further stayed until the final disposition of the last of his applications for leave and judicial review, providing however, that the respondents (or either one of them) has leave to apply to any judge of this Court on an urgent basis to vacate the stay hereby ordered in the event that Richard Bhemkumar Sowkey is charged with any criminal offence prior to the expiry of this stay hereby ordered.
"Michael L. Phelan"
J.F.C.
Ottawa, Ontario
January 16, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NOS.: IMM-277-04 / IMM-291-04
STYLE OF CAUSE: RICHARD BHEMKUMAR SOWKEY v. MCI
APPLICANT'S MOTION HEARD BY TELECONFERENCE BETWEEN OTTAWA AND TORONTO
DATE OF HEARING: January 14, 2004
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR. JUSTICE PHELAN
DATED: January 16, 2004
APPEARANCES:
Mr. Ronald Poulton FOR THE APPLICANT
Ms. Mandeep Atwal FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mamann & Associates FOR THE APPLICANT
Barristers and Solicitors
74 Victoria Street, Suite 303
Toronto, Ontario
M5C 2A5
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Ontario Regional Office
The Exchange Tower
130 King Street West
Suite 3400, Box 36
Toronto, Ontario
M5X 1K6