Barrera v. Canada (Minister of Citizenship and Immigration)

Barrera v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2002-11-26
Neutral citation
2002 FCT 1227
File numbers
IMM-5824-02
Decision Content
Date: 20021126
Docket: IMM-5824-02
Neutral citation: 2002 FCT 1227
Toronto, Ontario, Tuesday, the 26th day of November, 2002
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
ISMAEL ALEJANDRO BARRERA
Applicant
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is a motion by Ismael Alejandro Barrera (the "applicant") for an order staying his deportation to Uruguay scheduled to take place on November 29, 2002.
[2] The applicant entered Canada on August 29, 2000 and made a refugee claim which failed.
[3] A pre-removal risk assessment was conducted and the result of the assessment was negative.
[4] The applicant was married to a Canadian citizen in March 2000. Immediately after his marriage, he filed a spousal/humanitarian application, which was received by the respondent on March 21, 2002.
[5] The respondent, in a letter dated November 14, 2002, told the applicant that it would take approximately 10 months from the date of receipt of his application to process it. However, in a letter from the enforcement officer in this case, dated November 19, 2002, the applicant was informed that it would take 11 to 12 months before the file would be assigned and completed.
[6] The applicant's spouse had been suffering from severe depression until she became acquainted with the applicant, after which time her mental condition greatly improved.
[7] The applicant's spouse became pregnant, but had a miscarriage in September 2002.
[8] Due to the miscarriage, the loss of her employment and the pending removal of her husband to Uruguay, the mental condition of the applicant's spouse has worsened.
[9] The applicant fears that his spouse may take her own life if he is removed from Canada. This fear is supported by the report of Dr. J. Pilowsky, a clinical and rehabilitation psychologist.
[10] Other doctors' reports confirm her mental condition and the report of Dr. Pollock confirms the importance of her spouse's support in her recovery.
[11] Issue
Should a stay be granted?
Analysis and Decision
[12] It is now accepted that a removal officer has some discretion and may in certain circumstances, stay the removal of the applicant (see Wang v. Canada (Minister of Citizenship and Immigration), [2001] 3 F.C. No. 682 (T.D.)).
[13] In order for me to grant a stay, the applicant must satisfy the requirements set out in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.) at page 305:
This Court, as well as other appellate courts have adopted the test for an interim injunction enunciated by the House of Lords in American Cyanamid Co. v. Ethicon Ltd..,[1975] A.C. 396 [Footnote 3 appended to judgment]. As stated by Kerans J.A. in the Black case supra:
The tri-partite test of Cyanamid requires, for the granting of such an order, that the applicant demonstrate, firstly, that he has raised a serious issue to be tried; secondly that he would suffer irreparable harm if no order was granted; and thirdly that the balance of convenience considering the total situation of both parties, favours the order.
The applicant is required to meet all 3 branches of the tri-partite test.
[14] Serious Issue
I am of the view that the applicant has raised serious issues to be tried in this case which include:
1. Did the enforcement officer follow the directions of the memorandum of the Regional Director of Enforcement and if he did, was this a fettering of his discretion?
2. Did the enforcement officer consider the medical reports?
[15] Irreparable Harm
I am satisfied that on the unique facts of this case, the applicant could suffer irreparable harm if he was removed from Canada. The irreparable harm to him is what could happen to his wife after he is removed.
[16] Balance of Convenience
The balance of convenience favours the applicant. This is because the respondent can still remove the applicant if he is unsuccessful in his application.
[17] The motion for a stay of the applicant's removal is granted until either his application for leave for judicial review is denied or if leave is granted, until the application for judicial review is dealt with by the Court.
ORDER
IT IS ORDERED THAT:
1. the deportation (removal) of the applicant is stayed until his application for leave for judicial review is denied or if leave is granted, then until the application for judicial review is dealt with by the Court.
"John A. O'Keefe"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: IMM-5824-02
STYLE OF CAUSE: ISMAEL ALEJANDRO BARRERA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MONDAY, NOVEMBER 25, 2002
REASONS FOR ORDER
AND ORDER BY: O'KEEFE J.
DATED: TUESDAY, NOVEMBER 26, 2002
APPEARANCES BY: Mr. Ricardo Aguirre
For the Applicant
Mr. Brad Gotkin
For the Respondent
SOLICITORS OF RECORD: Ricardo Aguirre
Barrister and Solicitor
1255 Bay Street
Suite 601
Toronto, Ontario
M5R 2A9
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20021126
Docket: IMM-5824-02
BETWEEN:
ISMAEL ALEJANDRO BARRERA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER