Date: 20000829
Docket: IMM-1299-00
BETWEEN:
DANIEL CHICHESTER
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
BLAIS J.
[1] This is a motion for an order granting a stay against the execution of a removal order issued against the applicant, Daniel Chichester, pursuant to section 18.2 of the Federal Court Act.
[2] The Immigration and Refugee Board, Appeal Division, (the "IAD") had issued an order on January 26, 1993, amended March 11, 1994, staying the execution of the removal order against the applicant.
[3] On June 22, 1999, the IAD sent a notice of review to the applicant mentioning that the IAD would review the case in chambers.
[4] The notice was sent to the applicant at the sole address that was known by the IAD, given that the applicant failed to inform the IAD of his changes of address since 1993.
[5] By the same notice, the IAD required the respondent to indicate in writing the position of the Minister in regards to the review.
[6] In response to the notice, the respondent filed on July 8, 1999 an application, pursuant to section 33 of the Immigration Appeal Division Rules, to cancel the stay.
[7] The respondent mentioned that subsequent to the hearing of 1992, the applicant had been convicted of assault in 1995 and has not reported in writing, as required by the stay conditions, since January 1994.
[8] On July 22, 1999, the Registrar of IAD acknowledged receipt of the application.
[9] The former counsel for the applicant, Mr. Alfred H. Herman, also responded to the letter received from the Appeal Division, by letter dated July 9, 1999, informing the IAD that he has not been in contact with the applicant since 1993.
[10] On December 14, 1999, the IAD granted the application and cancelled the stay.
[11] Relating to the serious issue, even though the applicant failed to inform the Appeal Division of his changes of address, the applicant has informed twice the respondent of his changes of address, the last time he did that, was December 3, 1996, as was acknowledged by a representative of the respondent.
[12] The applicant also reported in person at least fifteen times from 1994 until year 2000, even though he had not reported in writing as was mentioned in the order of 1993.
[13] Although the respondent was aware of the new address of the applicant, in July 1999, nevertheless, the respondent sent a copy of the application, pursuant to section 33, at the old address.
[14] That constitutes in itself a mistake by the Minister and the applicant has suffered prejudice as a result because he could not respond to the allegation that he was not reporting as required.
[15] This constitutes a serious issue to be tried.
[16] Relating to irreparable harm, this Court has to consider that the Appeal Division had rendered a decision in 1993, taking into consideration the family situation of the applicant and even though the applicant had committed a crime at the time, the Appeal Division decided to stay the removal order for five years.
[17] The personal situation of the applicant has changed since 1993 and since that time, the applicant has married another woman, has had a new son and is taking care of the two Canadian children of his wife.
[18] His wife and her children are depending on him financially even though his five other children are living on their own and all reside in Canada.
[19] If the applicant is deported, his family who is depending on him will suffer financial hardship and the applicant"s business will probably go bankrupt.
[20] Even though it is not a reason in itself to constitute irreparable harm, financial hardship and all the problem associated to his deportation, amount to irreparable harm in the special circumstances of this case.
[21] The Court should remember that the applicant had been benefited of a stay of the removal order for the last seven years and if deported, he will lose the benefit of that decision because he failed to notify the Appeal Division of his changes of address when he had notified the respondent of his changes of address in the past and has also reported, as requested to the respondent, meeting his obligations.
[22] Regarding the balance of convenience, in the particular circumstances of this case, I am of the opinion that the balance of convenience favours the applicant.
[23] For these reasons, the motion for a stay is granted.
Pierre Blais
Judge
OTTAWA, ONTARIO
August 29, 2000