Date: 20010419
Docket: IMM-1867-01
Neutral Citation: 2001 FCT 357
Ottawa, Ontario, this 19th day of April, 2001
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
CECIL LOVE, LAUREL LOVE and D'JAMAR ALEXANDER ELYOTT LOVE, DEJANIA LOVE, JOVAN JOHN DEJOURELL LOVE,
EBONIE ENDAYSHA LOVE & DAYVON CEDRICK ZION LOVE
by their litigation guardian LAUREL LOVE
Applicants
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
[1] This is a motion by the applicants for an order staying the deportation order made against the applicant, Cecil Love, such order to be executed on April 20, 2001.
[2] The applicant, Cecil Love, came to Canada in October, 1988 and claimed refugee status. He has been in Canada since that date.
[3] He has had a common law relationship with the applicant, Laurel Love since October, 1988. He married Laurel Love on March 4, 2001. He is the father of their four children and acts as father to a fifth child of Laurel Love. The children range in age from 6 to 13 years.
[4] The applicant, Laurel Love is employed with the Government of Canada.
[5] The applicant, Cecil Love became part of the backlog program for refugees and was given favourable H & C consideration. He received notification of this in August, 1994, but the notification also said that he was inadmissible to Canada due to criminal grounds. The notice told him the matter would be reviewed and he would be contacted in the near future. He was told not to make inquiries about his case as this would only further delay the case. The applicant, Cecil Love was never further contacted with a decision on his application.
[6] In 1993, the applicant, Cecil Love was not recommended for H & C consideration but this fact was never communicated to him.
[7] The applicant, Cecil Love was involved in criminal activity and attempted to obtain a pardon but the firm he hired to obtain the pardon did not apply for the pardon. Presently, due to an outstanding fine, the applicant, Cecil Love will not be able to apply for a pardon for three years.
[8] The applicant, Cecil Love assumed that he was landed as he had received no further decision on his 1994 H & C application.
[9] When the applicant, Cecil Love was arrested in 1997, he was in contact with Immigration officials.
[10] According to the affidavit of the removal officer, she had sent a direction to report to the applicant, Cecil Love on March 22, 2001 which report notified the applicant that his removal from Canada was scheduled for April 20, 2001.
[11] The applicant's solicitor wrote and asked the removal officer to defer the removal until his outstanding H & C application was disposed of by the department. She exercised her discretion and refused to defer the removal.
[12] The removal officer, in her affidavit, lists the material that she considered in reaching her decision not to defer the removal. This list does not include a departmental memo in 1994 which stated that the applicant, Cecil Love qualified for H & C consideration because of the interests of the children. The authorities were aware of his previous criminal activity.
[13] A family class sponsorship application for the applicant, Cecil Love was filed in March, 2001.
[14] The applicant, Cecil Love filed an application for judicial review of the removal officer's decision to refuse deferral of the removal.
Issue
[15] Should an order issue staying the removal order?
Analysis and Decision
[16] In order to grant a stay, I must be satisfied that the applicant, Cecil Love has met the tri-partite test outlined in Toth v. Canada (Minister of Employment and Immigration) (1988) 6 Imm. L.R. (2d) 123 (F.C.A.). The applicant must meet all three parts of the tri-partite test. Summarized, these tests are:
1. Has the applicant, Cecil Love demonstrated that he has a serious issue to be tried?
2. Has he demonstrated that he would suffer irreparable harm if the stay order was not granted?
3. Has he demonstrated that the balance of convenience considering the total situation of both parties favours the order being granted?
Serious Issue
[17] I am of the opinion that the applicant, Cecil Love has raised serious issues to be tried. These serious issues are:
4. What is the status of the 1994 H & C application? Was he or was he not approved for landing by the department?
5. Did the failure of the removal (expulsion) officer to consider the department's 1994 memo stating that the applicant, Cecil Love qualified for H & C consideration, make her decision to refuse deferral unreasonable or perverse?
For the purpose of this motion, these are serious issues to be tried.
Irreparable Harm
[18] If the applicant, Cecil Love is deported to Jamaica, he will not be able to come back to Canada to visit his family for at least three years as that is the earliest that he can obtain a pardon for his criminal offences. If he was successful in either of his applications to become landed in Canada, he would not be able to enter Canada. In the circumstances of this family, I am of the view that this would result in irreparable harm.
Balance of Convenience
[19] I find that the balance of convenience favours the applicant, Cecil Love in this case as he will not be able to take advantage of any success he may have in either of his applications. The applicant, Cecil Love has been in Canada since 1988 and the delay occasioned by the stay will not overly inconvenience the respondent.
[20] The removal order issued against the applicant, Cecil Love on March 22, 2001 is hereby stayed until the later of the dates on which the application for judicial review is finally dealt with or until his applications for H & C consideration are dealt with. This includes the family class sponsorship application.
ORDER
[21] IT IS ORDERED that the removal order issued against the applicant, Cecil Love is hereby stayed until the later of the dates on which the application for judicial review is finally dealt with or until his applications for H & C consideration, including the family class sponsorship application are dealt with.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
April 19, 2001