Date: 19980930
Docket: IMM-4922-98
BETWEEN:
FELIX TURSIO AMAYA,
Applicant,
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
ROULEAU, J.
[1] This application to stay the execution of a deportation order made against the applicant came before me at Vancouver, B.C., on Monday, September 28, 1998.
[2] The grounds of the application were amended shortly after this hearing began, wherein paragraph 1 of the Grounds of Application should now read as follows:
| the applicant has an arguable case in the main application wherein he is seeking leave for judicial review of the decision of the Respondent not to disclose material relating to issuance of the previous "danger to the public opinion" and refusing extension of time to file submissions; |
[3] The applicant, a citizen of El Salvador, was admitted to Canada in 1989 as a permanent resident having been determined under the Immigration Act to be a convention refugee. Between January of 1991 and March of 1996 he was convicted on 9 different occasions in the Provincial Courts of British Columbia, mostly for offenses of possession and trafficking of narcotics contrary to the Narcotic Control Act.
[4] In July of 1994, following an inquiry, the applicant was determined to be a person described in subparagraph 27(1)(d)(ii) of the Immigration Act as a result of having been convicted and was ordered deported from Canada. This order was appealed and dismissed in October of 1996. In December of 1996, the applicant was served with documents in which he was advised that Immigration Canada would be requesting an opinion from the Minister of Citizenship and Immigration that he constituted a danger to the public pursuant to section 53(1) of the Immigration Act. Submissions were filed on his behalf by a counsel at Vancouver in January of 1997. In March of 1997 the Minister of Citizenship and Immigration formed the opinion that the applicant constitutes a danger to the public in Canada pursuant to paragraph 53(1)(d) of the Immigration Act. The applicant did not seek leave to commence a judicial review of the danger opinion issued in March of 1997. After his arrest in April 1997, he was deported from Canada to El Salvador.
[5] On September 2nd, 1998, immigration authorities in Vancouver were informed that the applicant had returned to Canada. On September 8, 1998, he was arrested and it was determined that he was a person who came into Canada contrary to section 55 of the Immigration Act. Following his arrest, it is suggested that he wished to make a further claim as a convention refugee. This was denied because he had already been determined under the Act to be a convention refugee in December of 1989. He remained detained since the Adjudicator determined that the applicant posed a danger to the public and was unlikely to report for removal if released. A conditional departure order was made against the claimant since he was a person who came to Canada without having obtained the consent of the Minister. He was then informed by letter that the Minister's opinion that he "constituted a danger to the public" remained in effect and he was invited to make submissions within 15 days of receipt of the letter.
[6] Counsel for the applicant then requested the information that was before the Minister in March of 1997 giving rise to the danger to the public opinion. Counsel was advised by immigration authorities that the Minister's opinion of March 1997 was still valid and subsisting but invited applicant's counsel to make submissions. Counsel was informed by immigration officials that they did not intend to extend the time to file the applicant's submissions with respect to his allegation that he was no longer a danger to the public. Counsel was further informed that the material submitted to the Minister in March 1997 had also been provided to the applicant at that time; the only document made available to him was the summary which had been initially prepared for submission to the Minister prior to providing the opinion report.
[7] Applicant's counsel suggested that he should have been granted an extension of time to file submissions beyond the 15 days and that all documents that were made available in December 1996 to January 1997 to the Minister before rendering his opinion should be once again be produced so that he could better prepare the case he had to meet. Counsel submits that this is sufficient grounds to grant the stay since they were not provided with the adequate information to prepare proper submissions and that this amounted to a denial of natural justice.
[8] He then explained that the applicant was illiterate in Spanish and English, that he belonged to a native community in El Salvador and spoke a dialect and, as a result of his conversations with the applicant, he felt that he was intellectually deficient and it was difficult for him to get instructions. He submits that irreparable harm would come to this applicant as it had already been determined that he was a convention refugee in 1989 and that the situation in El Salvador had not improved. With respect to the balance of convenience, though it was agreed that the Minister had a statutory duty to execute removal orders, he can lean in favour of the applicant considering the risks the applicant would face in El Salvador and that a delay in the deportation should not inconvenience the Minister.
[9] In reply, counsel for the respondent is of the view that the stay should not be granted; that this claimant was determined by the Minister's opinion to be a danger to the public and that this opinion still subsisted and was valid; that he was lawfully deported and illegally re-entered.
[10] Counsel for the respondent submits that the fact that no extension of time was granted and failure to provide the documents which were submitted to the Minister in 1996 is not fatal to the Minister's position.
[11] It should be noted that there was no challenge to either the subsisting validity of the Minister's opinion or to the refusal of a new refugee claim hearing; nor was there any attack on the present departure notice.
[12] The history reveals that this applicant was deported in April 1997 and returned to Canada sometime in August of 1998. Though it is suggested in his affidavit that he was in hiding in El Salvador, there is no evidence whatsoever that he was subjected to any threats, nor did he in any way satisfy the Court that he was in any danger during the 15 months that he resided in his native country.
[13] I am satisfied that the fact that all documents made available to the Minister in 1996 were not required in order for his counsel to prepare submissions to satisfy the Minister that his opinion should be changed. The onus was on the applicant to satisfy the Minister as to any material change in the applicant's conduct or lifestyle.
[14] The balance of convenience clearly favours the Minister. Applicant's counsel may submit representations even though, Mr. Amaya may be out of the country.
[15] The Minister has a duty to the citizens of Canada to protect them from refugees considered to be a danger to the public and who have been given sanctuary in Canada and then defy the laws of those who had gratuitously provided him with refuge.
[16] The application for stay is dismissed.
(Sgd.) "P. Rouleau"
Judge
Vancouver, British Columbia
September 30, 1998
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
HEARING DATED: September 28, 1998
COURT NO.: IMM-4922-98
STYLE OF CAUSE: FELIX TURSIO AMAYA
v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Vancouver, BC
REASONS FOR ORDER OF ROULEAU, J.
dated September 30, 1998
APPEARANCES:
Mr. Vance Golding for the Applicant
Ms. Lori-Jane Turner for the Respondent
SOLICITORS OF RECORD:
| Mr. Vance Golding for the Applicant |
| Rankin & Bond |
2nd Floor, 157 Alexander St.
Vancouver, B.C.
V6A 1B8
Morris Rosenberg for the Respondent
Deputy Attorney General
of Canada