Federal Court Decisions

Date: 19980313

Docket: IMM-3402-97

BETWEEN:

     ROBERTO AMBROSIO SAN VICENTE FREITAS

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

     (Delivered orally on March 12, 1998)

RICHARD J.:

[1]      The applicant seeks a stay of a removal order until such time as his application to set aside the decision of the Convention Refugee Determination Division (CRDD) is disposed of.

[2]      The applicant has not challenged the deportation order itself.

[3]      By reason of paragraph 49(1)(d) of the Immigration Act, there is no statutory stay. In order to obtain a stay, the applicant must satisfy each of the three elements of the tripartite test.

[4]      Counsel for the respondent concedes that there is a serious issue to be tried, since the applicant has been granted leave to proceed with his application for judicial review of the decision of the CRDD that he is excluded from making a refugee claim by reason of section F(c) of Article 1.

[5]      The applicant was convicted of a serious criminal offence in Canada resulting in a sentence to serve nine years of imprisonment after having already spent seven and a half months in pre-trial custody.

[6]      The actions taken by the applicant and four other persons led the judge to determine that first, a conspiracy existed to forcibly effect the escape of two alleged Colombian drug traffickers from the Fredericton County Jail, and furthermore, that Mr. San Vicente was a member of that conspiracy. His four co-conspirators pled guilty to the charge and were sentenced to serve ten years. Mr. San Vicente pled not guilty. However, at the trial, he was found guilty and sentenced to serve a nine year term of imprisonment after it was noted that he had already spent seven and a half months in pre-trial custody by that time.

[7]      In sentencing Mr. San Vicente for his part in this offence, Mr. Justice Stevenson stated:

If you and your companions had attempted to break into the Fredericton Jail and free Jaramillo and Escobar using the weapons that had been accumulated, and having regard to the ammunition you had, the potential for killing or wounding of Corrections personnel, other prisoners in the jail, and perhaps bystanders or anyone who happened to be in the neighbourhood at the time, is almost beyond imagination. In addition to that, there was the potential for the taking of hostages. Now, as I say from what we know that's the conclusion one must reach. Maybe you were all amateurs, I don't know, but I have to assume that when people are armed and equipped to the extent that you and your companions were, that you're prepared to use those arms and that equipment to effect the purpose you had in mind. That, to my mind, makes it the worst case situation.

[8]      The applicant bases his claim of irreparable harm on the following:

1)      The similarity of PTJ behaviour which culminated in illegal arrest and subsequent murder of Briceno and Fuenmayor (two co-accused);

2)      The horrendous human rights abuse record of the PTJ which includes torture and summary murder of persons perceived as undesirable, and the fact that despite Venezuela being a democracy, they have been able to engage with impunity in such activities;

3)      Mr. San Vicente, like the two murder victims, is known to the PTJ. He publicized human rights violations by them during the mid-eighties. He was placed on a wanted list by them.

[9]      The respondent filed a message dated March 26, 1997, from the First Secretary (Immigration) at the Canada Embassy in Venezuela which reads as follows:

This refers to your fax letter of February 18, 1997, concerning Mr. Roberto Ambrosio San Vicente, of Venezuela. Mr. Jim Whelan, RCMP Liaison Officer, and I went yesterday to the local interpol office to clarify the situation with Chief Commissioner Francie Fluche Hostler.

Chief Commissioner Fluche confirmed that, following a lawyer's request for constitutional review, Mr. San Vicente's name was removed from the judge's record of condemnation for his accomplices, as well as from the police's list of wanted suspects (arrest warrants are not used in Venezuela). Therefore, Mr. San Vicente, unless he became involved once again in a crime, would not be arrested or detained by the local police authorities; even his previous convictions (dating from before 1980) and his high-profile criminal activities would not justify such action. As for "Los Simultaneous" (a name given to the group because they always attacked two banks simultaneously), there is, of course, no formal proof of the constitution of the group. However, the local police authorities were aware of their "modus operandi" and considered them as such.

[10]      There is conflicting evidence on the issue of irreparable harm. Clearly, the applicant is fearful of his return to Venezuela.

[11]      However, even if the evidence established that he would suffer irreparable harm, the balance of convenience lies in favour of the respondent.

[12]      The public interest in this matter lies in permitting the respondent to effect the removal order. The applicant has been convicted in Canada of a serious criminal offence in the circumstances described by the sentencing judge. In not granting a statutory stay in such circumstances, Parliament has indicated that the public interest lies in the timely execution of a removal order.

[13]      Counsel for the applicant relied on the Suresh case in the Ontario Court of Justice (General Division) heard on January 23, 1998. In that case, the applicant had not been convicted of serious offence in Canada and had claimed an alleged Charter violation.

[14]      The application is dismissed.

     __________________________

     Judge

Ottawa, Ontario

March 13, 1998