Docket: IMM-8566-04
Ottawa, Ontario, this 14th day of October, 2004
Present: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN
BETWEEN:
MICHAL KSIEZOPOLSKI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
and
THE SOLICITOR GENERAL OF CANADA
Respondents
REASONS FOR ORDER AND ORDER
(Delivered orally and subsequently written for clarification and precision)
[1] The Applicant asked for a stay of a removal slated for later on this week.
[2] The Applicant originally came to Canada in 1991 as a landed immigrant but failed to disclose outstanding criminal charges against him in his native Poland. He was forcibly removed in 1997 and served 15 months in prison for assault. He returned to Canada via the US in 2001 using his old record of landing. He met his fiancee, Patricia Ostrowska, soon after and they had a child in July 2004.
[3] In February 2004, he was picked up on a traffic offense and arrested. He was unsuccessful in his Pre Removal Risk Assessment ("PRRA") application for which he did not seek leave to obtain judicial review. Only in September, as a result of being summoned to the Greater Toronto Enforcement Centre ("GTEC") to fix his departure schedule, did he file an H & C application.
[4] He is now asking for a stay pleading he is needed in Canada to support his fiancee and child.
[5] To obtain a stay the Applicant must satisfy the tripartite conjunctive test set out in Toth v. Canada (M.E.I.) (1988) 86 N.R. 302. In my view, he does not do so as he fails the balance of convience leg of said test.
[6] The Applicant has twice abused Canadian immigration law. First, by not disclosing very relevant facts, the second time by using invalid old documents to gain entry into this country. He only came to the attention of the immigration authorities because he was picked up in a traffic violation. He undertook no steps to rectify his immigration situation himself. He availed himself of the PRRA process once arrested but he did not seek judicial review of that decision. His H & C application was only filed when his departure was imminent.
[7] This Applicant does not come with clean hands before me; anything but. He is not a failed refugee claimant but a person who deliberately twice broke Canadian immigration laws and sneaked into the country using false documentation. The well established principle "he is who has committed Iniquity ... shall not have Equity." Jones v. Lenthal (1669) 1 Ch. Ca. 154 needs to be applied in this case. I see no reason to extend equity to the Applicant in light of his deeds. It follows as a logical corollary that where the Applicant does not come with clean hands, the balance of convenience does not tilt his way.
[8] In addition, the Applicant already has had the benefit of due process twice, once in his original deportation and now with the PRRA process. The Applicant is now in essence asking for an indeterminate stay pending the outcome of his H & C application. However, even if that application is successful he would still not be admissible to Canada. The balance of convenience therefore falls in favour of the Respondent, who has a responsibility to see that removal orders are enforced as soon as practicable.
[9] Accordingly, this application will not succeed.
ORDER
THIS COURT ORDERS that:
1. the application be dismissed.
2. on consent the style of cause is changed to:
MICHAL KSIEZOPOLSKI
Applicant
and
THE SOLICITOR GENERAL OF CANADA
Respondents
"K. von Finckenstein"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM- 8566-04
STYLE OF CAUSE: Michal Ksiezopolski v. S.G.C.
PLACE OF HEARING: Ottawa, Ontario
Toronto, Ontario
DATE OF TELECONFERENCE: October 13, 2004
REASONS FOR ORDER AND ORDER: The Honourable Mr. Justice von Finckenstein
DATED: October 14, 2004
APPEARANCES:
Mr. Ronald Poulton for the Applicant
Ms Marina Stefanovic for the Respondent
SOLICITORS OF RECORD:
Mamann & Associates for the Applicant
Toronto, Ontario
Mr. Morris Rosenberg for the Respondent
Deputy Attorney General of Canada