Judgments

[1993] 2 F.C. 505

IMM-352-93

Verona Seegoolam Petit (Applicant)

v.

The Minister of Employment and Immigration (Respondent)

Indexed as: Petit v. Canada (Minister of Employment and Immigration) (T.D.)

Trial Division, Reed J.—Ottawa, February 28, 1993.

Federal Court jurisdiction — Trial Division — Application for stay of removal order pending disposition of application for leave to apply for judicial review of decision insufficient humanitarian and compassionate grounds to permit landing application from within Canada — Purpose of enacting Federal Court Act, s. 18.2 — Within jurisdiction under, s. 18.2 to grant stay of removal order in context of judicial review proceeding to preserve status quo — Divergence of opinion in T.D. requiring resolution by F.C.A.

Citizenship and Immigration — Exclusion and removal — Immigration inquiry process — Interview to determine bona fides of applicant’s marriage to Canadian citizen held on eve of deportation despite applicant’s requests to determine matter earlier — No opportunity to challenge decision — Reasons for decision on bona fides not communicated to applicant — Arguable case, balance of convenience favouring applicant, irreparable harm to applicant as respondent largely responsible for unfair situation, even though no threat of physical harm in Trinidad.

This was an application for a stay of a removal order pending disposition of an application for leave to apply for judicial review of the decision that there were insufficient humanitarian and compassionate grounds to permit the applicant to apply for landing from within Canada. The applicant came from Trinidad to Canada with her two children in 1988. She married a Canadian citizen in June 1992. She requested determination as to whether there were sufficient humanitarian and compassionate grounds to allow her to apply for landing from within Canada on the ground of her marriage to a Canadian citizen. On February 5, 1993 she and her husband were interviewed. The applicant was lead to believe that the marriage would probably be found to be bona fide. Four days later she was informed that the marriage was not considered bona fide and that there were insufficient humanitarian and compassionate grounds to justify an application for landing from within the country. This conclusion was apparently reached after the interviewer discussed the interview with his supervisor. The issues were whether the Court had jurisdiction to stay a removal order and whether such a stay should be granted in this case.

Held, the application should be allowed.

The Court had jurisdiction to issue a stay of a removal order under Federal Court Act, section 18.2, which provides that “on an application for judicial review, the Trial Division may make such interim orders as it considers appropriate pending the final disposition of the application.” It would be desirable for the Court of Appeal to resolve the divergence of opinion in the Trial Division as to whether the Court has jurisdiction to stay a removal order. Section 18.2 gives the Court authority to grant interlocutory injunctions in the context of a judicial review proceeding in order to preserve the status quo, not merely the effectiveness and integrity of the proceedings before it.

The applicant had an arguable case. She was summoned to an interview on the eve of deportation, so that she had no opportunity to challenge any decision arising therefrom before deportation was to be effected. The decision concluding that the marriage was bona fide was overruled for reasons which were never communicated to her and to which she was denied an opportunity of responding. The balance of convenience weighed in the applicant’s favour. The additional time required to conclude these proceedings will be minimal in comparison to the length of time the applicant has already been in Canada, and the disruption to the applicant if she were required to return to Trinidad and then to come back to Canada would be much greater than any inconvenience to the respondent. Although it was more difficult to say that the applicant would suffer irreparable harm if returned to a country where there was no threat of physical danger, that the eleventh-hour situation in which the applicant and her children found themselves was largely of the respondent’s making and smacked of unfairness was an overriding consideration.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Federal Court Act, R.S.C., 1985, c. F-7, s. 18.2 (as enacted by S.C. 1990, c. 8, s. 5).

Immigration Act, R.S.C., 1985, c. I-2, ss. 52.1 (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 17), 114(2) (as am. by S.C. 1992, c. 49, s. 102).

Judicial Review Procedure Act, R.S.O. 1990, c. J-1, s. 4.

Rules of the Supreme Court (U.K.), O. 53, r. 3(10)(a).

CASES JUDICIALLY CONSIDERED

NOT FOLLOWED:

Ali v. Canada (Minister of Employment and Immigration), 92-T-1647, Strayer J., order dated 17/11/92, F.C.T.D., not yet reported.

CONSIDERED:

Kerrutt v. Minister of Employment and Immigration (1992), 53 F.T.R. 93 (F.C.T.D.); Khan v. Canada (Minister of Employment and Immigration), 92-T-1311, MacKay J., order dated 6/11/92, F.C.T.D., not yet reported.

REFERRED TO:

Hosein v. Canada (Minister of Employment and Immigration) (1992), 17 Imm. L.R. (2d) 125 (F.C.T.D.); Hamilton v. Canada (Minister of Employment and Immigration), [1991] 1 F.C. 3; (1990), 36 F.T.R. 167; 11 Imm. L.R. (2d) 225 (T.D.); Paul v. Canada (Minister of Employment and Immigration), 93-T-86, Noël J., order dated 21/1/93, F.C.T.D., not yet reported; Regina v. Licensing Authority Established under Medicines Act 1968, Ex parte Smith Kline& French Laboratories Ltd. (No. 2), [1990] 1 Q.B. 574 (C.A.); Regina v. Secretary of State for the Home Department, Ex parte Herbage, [1987] 1 Q.B. 872; People First of Ontario et al. v. Regional Coroner of Niagara et al. (1991), 54 O.A.C. 182 (C.A.); Middlesex (County) v. Ontario (Minister of Municipal Affairs), [1992] O.J. No. 1145 (Gen. Div.) (Q.L.); Dennison v. Algonquin College of Applied Arts and Technology et al. (1990), 38 O.A.C. 134 (Div. Ct.); Toth v. Canada (Minister of Employment and Immigration) (1988), 6 Imm. L.R. (2d) 123; 86 N.R. 302 (F.C.A.).

AUTHORS CITED

Employment and Immigration Canada. Examination and Enforcement. Ottawa: Employment and Immigration Canada, 1991.

Sgayias, Davis, et al. Federal Court Practice 1990. Toronto: Carswell, 1990.

Wade, H. W. R. Administrative Law, 6th ed. Oxford: Clarendon Press, 1988.

APPLICATION for a stay of a removal order pending disposition of an application for leave to apply for judicial review of a decision that there were insufficient humanitarian and compassionate grounds to justify allowing the applicant to apply for landing from within Canada. Application allowed.

WRITTEN REPRESENTATIONS MADE BY:

Murray Tkatch for applicant.

Harley R. Nott for respondent.

SOLICITORS:

Tkatch & Young, Toronto, for applicant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for order rendered in English by

Reed J.: The applicant seeks a stay of a removal order which is scheduled to be executed on Friday, February 26, 1993.

The applicant arrived in Canada, from Trinidad, on November 23, 1988 with her two children who are now aged 7 and 11. She claimed refugee status. She states that she became engaged to her present spouse in 1991 and married him in June of 1992.

At least two and perhaps three requests were made by her after that date, seeking a determination as to whether there were sufficient humanitarian and compassionate grounds to allow her to apply for landing from within Canada, on the ground that she was married to a Canadian citizen. Requests to the Immigration authorities to deal with this issue are contained in letters of August 13, 1992 and October 13, 1992.

On February 5, 1993, she and her husband were asked to attend for a marriage interview. They were interviewed separately by a Mr. Murray Carnegie. At the end of the interviews, the applicant states that Mr. Carnegie indicated “it[s] looks good.” She states in her affidavit, dated February 17, 1993:

I verily believe from the comment of the immigration officer, my knowledge of the interview, the questions that were asked and my discussions with my husband, that the interview, in fact, did go very well and that there was no basis to doubt the genuine nature of my marriage.

Four days after that interview, on February 9, 1993, the applicant was notified that she would be required to leave Canada by February 26, 1993, and that there were insufficient humanitarian and compassionate grounds to justify allowing her to apply for landing from within the country. I quote again from her affidavit:

When Mr. Carnegie told me the result of my interview on the 9th of February, 1993, he advised me that the decision was negative because my marriage was not bona fide and that was after he had discussed the case with his supervisor. I verily believe that all the information I had from Mr. Carnegie was that he was of the opinion that the marriage was, in fact, bona fide notwithstanding that that was not the ultimate decision given to me.

The first issue raised by this case is whether there is any jurisdiction in this Court to issue a stay of a removal order in a case such as the present. There are clearly divergent views on this subject held by different members of this Court. Mr. Justice Strayer in Ali v. Canada (Minister of Employment and Immigration) (not yet reported, November 17, 1992, 92-T-1647), stated that such jurisdiction did not exist. The full text of that decision is as follows:

The only order potentially under attack in the application for leave to seek judicial review is the decision of an immigration officer refusing special treatment on humanitarian and compassionate grounds. The applicant seeks a stay of a removal order pending determination of that application.

It is well established that a stay may not be granted to prevent the execution of a removal order if the validity of the removal order is not in dispute. [See e.g. Asumadu v. Minister of Employment and Immigration (1988), 113 N.R. 150 (F.C.A.); Akyampong v. Canada (Minister of Employment and Immigration) (1992), 18 Imm. L.R. (2d) 18 (F.C.A.).] An attack on the negative determination of a refugee claim is in effect an attack on the validity of executing a removal order which was made conditional on the refugee determination [Benhene v. M.E.I., unreported, April 13, 1992, 92-A-2193 (F.C.A.)]. But an attack on the exercise of a discretion under subsection 114(2) is in no way an attack on the validity of execution of a removal order. The executory nature of the removal order is not legally dependent on a negative, or any, discretionary decision under subsection 114(2).

The application for a stay must therefore be dismissed.

This reasoning was followed by Mr. Justice Noël in Paul v. Canada (Minister of Employment and Immigration) (not yet reported, January 29, 1993, 93-T-86).

At the same time, other decisions of this Court have held that stays of deportation orders can be issued when leave to appeal a negative decision pursuant to subsection 114(2) [Immigration Act, R.S.C., 1985, c. I-2 (as am. by S.C. 1992, c. 49 s. 102)] is under review.[1] This is based on the wording of section 18.2 of the Federal Court Act [R.S.C., 1985, c. F-7 (as enacted by S.C. 1990, c. 8, s. 5)] which section came into force on February 1, 1992:

18.2 On an application for judicial review, the Trial Division may make such interim orders as it considers appropriate pending the final disposition of the application.

I note that this provision does not merely state that the Court may suspend or alter a decision or order which is before it on judicial review pending final disposition of the application. It is more broadly framed than that. It states that the Trial Division “may make such interim orders as it considers appropriate pending … “

Prior to the enactment of that amendment, it was clear from a number of decisions, that the Court had jurisdiction to grant stays to protect the integrity of proceedings which were before the Court. The Court’s authority to grant stays of tribunal orders is discussed in Sgayias, Kinnear, Rennie and Saunders, Federal Court Practice 1990, at page 259:

Where a stay is sought against the proceedings or order of a tribunal or administrative body, a preliminary question to be considered is whether the Federal Court has the authority to stay the proceedings of the tribunal or administrative body. Section 50 does not provide the power to stay such proceedings. However, in N.B. Electric Power Commn. v. Maritime Electric Co., [1985] 2 F.C. 13, 60 N.R. 352 (Fed. C.A.), leave to appeal to S.C.C. refused (1985), 64 N.R. 240n (S.C.C.), the Court of Appeal held that it had the implied jurisdiction to stay such proceedings pending an appeal of a tribunal’s decision. Any question as to the scope of the ruling in the case has been removed by the decisions of the Court of Appeal in Yri-York Ltd. v. A.G. (Can.), [1988] 3 F.C. 186, 30 Admin. L.R. 1, 21 C.P.R. (3d) 161, 16 F.T.R. 319 (note), 83 N.R. 195 (C.A.), and Toth v. Can. (Min. of Employment & Immigration) (1988), 6 Imm. L.R. (2d) 123, 86 N.R. 302 (Fed. C.A.).

Section 18.2, as noted, is more broadly framed than merely according the Court authority to preserve the effectiveness and the integrity of the proceedings before it. Section 18.2 appears to be modelled on section 4 of the Ontario Judicial Review Procedure Act, R.S.O. 1990, c. J-1. A comparable provision is also found in the United Kingdom, Rules of the Supreme Court, O. 53, r. 3(10)(a). See, for example, Regina v. Licensing Authority Established under Medicines Act 1968, Ex parte Smith Kline & French Laboratories Ltd. (No. 2), [1990] 1 Q.B. 574 (C.A.); Regina v. Secretary of State for the Home Department, Ex parte Herbage, [1987] 1 Q.B. 872 and Wade, Administrative Law, 6th ed., 1988, at pages 671 ff.

The rationale behind provisions such as section 18.2 is to grant the court authority to preserve the status quo[2] when judicial review is being sought. Prior to express authority being given to exercise such relief, there was a reluctance on the part of courts to interfere with the statutory duty of a government official or minister. There was for many years a reluctance generally to grant injunctions against the Crown. Section 18.2 and provisions like it, such as section 4 of the Ontario Judicial Review Procedure Act, give the court authority to grant interlocutory injunctions in the context of a judicial review proceeding in order to preserve the status quo.

The only reason an applicant seeks a subsection 114(2) ruling is to allow him or her to stay in Canada and apply for landing here. If the immigration officer’s decision with respect to the genuineness of the applicant’s marriage had been different, and her subsection 114(2) application consequently allowed, there would have been no order issued requiring her to leave the country on February 26. Had a decision with respect to the applicant’s marriage been made in sufficient time to allow her to appeal that decision and had leave been granted, it is unlikely that the order requiring her to leave the country would have issued. The execution of the removal order is intimately bound up with the subsection 114(2) application.

While I recognize that some of my colleagues have a different interpretation of section 18.2, I cannot conclude that I am precluded from granting the relief sought because there is no jurisdiction to do so. The difference of views which exist in the Trial Division is clearly an issue upon which it would be desirable to have a decision by the Federal Court of Appeal.

In any event, since in my view I have jurisdiction pursuant to section 18.2, to grant the order sought, the question becomes whether such an order should be given in this case. There are usually three considerations considered relevant in such determination: (1) does the applicant have an arguable case? (2) will the applicant suffer irreparable harm if an order is not given? (3) does the balance of convenience lie in the applicant’s or the respondent’s favour? Refer Toth v. Canada (Minister of Employment and Immigration) (1988), 6 Imm. L.R. (2d) 123 (F.C.A.).

With respect to an arguable case, I conclude that such exists. It is very disconcerting that the applicant in this case made repeated requests (in August and October 1992) to have a marriage interview which requests were ignored. Had interviews occurred at that time, there would have been adequate opportunity for the results arising therefrom to have been challenged by seeking leave to appeal and settled before February 26. Instead, the applicant is called to a marriage interview just before deportation is to be effected so that there is no opportunity to challenge any decision arising therefrom before that time. What is more, in this case, the evidence to this point (i.e., from the applicant’s point of view) indicates that while the person who conducted the marriage interview appeared to conclude that the marriage was probably bona fide, someone else (his supervisor) overruled that decision for reasons which were never communicated to the applicant and to which she never had an opportunity to respond.

With respect to the balance of convenience, there is no doubt that this weighs in the applicant’s favour. The applicant has been in this country with her children since 1988. The additional time which would expire as a result of an order requiring the respondent to stay the deportation order until the applicant’s leave application, and if successful, judicial review application, is determined is, by comparison, minimal. On the other hand, the disruption to the applicant’s life which would occur if she were required now to return with her two children to Trinidad and then be returned to Canada, at a later date, is much greater.

The consideration which is most difficult to assess is whether or not it can be said that the applicant will suffer irreparable harm if a stay is not granted. There are decisions in this Court which indicate that when a person is being returned to a country when there is no threat of physical danger or persecution it is hard to argue that irreparable harm will exist: Kerrutt v. Minister of Employment and Immigration (1992), 53 F.T.R. 93 (F.C.T.D.); Khan v. Canada (Minister of Employment and Immigration) (November 6, 1992, 92-T-1311, not yet reported). In addition, it is my understanding from counsel for the respondent that if leave is granted allowing the applicant to commence a proceeding for judicial review, then, the respondent will fly the applicant, and presumably her two children as well, back to Canada at the respondent’s expense. I understood counsel to refer to section 52.1 [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 17] of the Immigration Act. That section only seems to operate when the removal order is set aside and this would not be the case at the leave stage.

Also the respondent’s own administrative directives indicate that the separation of spouses normally entails hardship to the individuals concerned. Paragraph 9.06(2) of the Immigration Guidelines states:

Requests for visa exemption made by spouses of Canadian residents will be sympathetically examined bearing in mind that separation of spouses in genuine marriages entails hardship which normally warrants the exercise of special relief (see procedures in IE 9.14 for exceptions). In the case of a genuine marriage, that is, a marriage of substance and of likely duration that has been entered into in good faith, and not merely for immigration purposes, it is not necessary for the persons concerned to prove additional hardship in order for a request for relief from A9(1) to be processed.

In the circumstances of this case, I think there is an overriding consideration which argues for granting a stay of the removal order: the eleventh-hour situation in which the applicant and her children find themselves was caused by the respondent. If the respondent had conducted the marriage interviews the previous August or October, as requested, the applicant would not be in the position she finds herself. She would have had an opportunity to test the validity of any decision made before being required to leave the country. To call someone in for a marriage interview on the eve of deportation, to have her told by the interviewer that everything looked good, to have that decision reversed by a supervisor with no explanation given to the applicant and, then, to have a removal order executed before the applicant even has an opportunity to obtain leave to challenge the decision smacks of unfairness.

The Court does not look favourably upon applicants who pop up at the last minute, before a removal order is to be executed, with a new spouse or with new requests for humanitarian and compassionate reviews. The position in which they put themselves is largely of their own making. In this case, the position in which the applicant and her children find themselves is largely of the respondent’s making. Thus, I find it appropriate to grant a stay of the removal order pending disposition of the applicant’s leave application and if leave is granted, until final disposition of her judicial review application.

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