Date: 19990528
Docket: IMM-2578-99
BETWEEN:
VAN ANH NGUYEN,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
ROULEAU, J.
[1] The applicant seeks the stay of a removal order that is effective May 31, 1999.
[2] This applicant arrived in Canada from Vietnam as a sponsored landed immigrant in 1990. A few years later, he attended at the offices of Immigration Canada wanting to sponsor his wife who had remained behind.
[3] The evidence reveals that three days prior to leaving his native country he married; this he did not disclose to the Immigration office in Vietnam or to visa officers upon his arrival in Canada.
[4] As a result of this disclosure, the sponsorship was negated and he was ordered deported in March, 1994. An appeal to the Immigration Appeal Division was dismissed but, under judicial review in the Federal Court in 1997, it was referred back for redetermination.
[5] In October, 1997, the applicant attended at the offices of Immigration Canada seeking permission to leave Canada and go to Vietnam to visit his wife; he had recently been advised that she was extremely ill. It is alleged that he was told that he could travel provided he withdrew his appeal to the IAD. The evidence on this aspect may be questionable. There is no doubt that, in the fall of 1997, he did travel to Vietnam on a vietnamese passport and was able to re-enter Canada some two or three weeks later without being obstructed.
[6] It appears that there was an almost tacit understanding that he would be allowed to go if he withdrew his appeal to the IAD. This causes me further concern. Considering the psychological background of this applicant and the difficult situation in which he found himself, could the approach taken by the parties be considered at least unfair? Undoubtedly, Immigration Canada was aware that he was going to attempt a visit to Vietnam and took no steps to prevent him either from leaving or re-entering the country; as a matter of fact, an immigration warrant was not issued until December of 1997.
[7] A warrant was issued for the arrest of this applicant in December, 1997. It was never executed until the applicant voluntarily attended at Immigration Canada in Calgary in April, 1998. He was released and reappeared before Immigration Canada in March, 1999, at which time he indicated that he was prepared to return to Vietnam. On April 27, 1999, he attended for a pre-removal interview and the evidence, though not clear, would seem to indicate that he attempted to file an application claiming refugee status and apparently this may have been denied since he would not be entitled to seek such remedy because of the outstanding deportation order.
[8] An application for landing in Canada on humanitarian and compassionate grounds under subsection 114(2) of the Immigration Act was received by the respondent on May 11, l999.
[9] Two applications for judicial review have been filed by counsel. On April 29, 1999, an application for judicial review in file IMM-2578-99 seeks to set aside the refusal of allowing the claimant to file a refugee claim. It is submitted that under subsection 54(1) of the Act, the removal order should be deemed to have been executed and of no force and effect since he voluntarily left the country to visit his wife and visited a country where lawful permission to re-enter was granted and that he was able to return unimpeded.
[10] Counsel for the respondent suggests this is not a serious issue since to re-enter he required the consent of the Minister pursuant to subsection 55(1) of the Act.
[11] I am satisfied that perhaps this may be worthy of debate. It is clear that subsection 54(1) requires the consent of the Minister before returning, but this applicant was not forcibly removed. Perhaps this may give rise to an arguable case.
[12] Counsel for the respondent referred me to the decision in Mercier (April 25, 1995, T-309-85, F.C.T.D.) which, he suggests, leaving the country would not invalidate the removal order. I believe the case is distinguishable; in Mercier the applicant had attempted to enter the United States and was refused, unlike the factual situation in the present case; the applicant was not denied entry to Vietnam.
[13] Counsel for the applicant, under file IMM-2582-99, also seeks judicial review or mandamus with respect to the subsection 114(2) application since no decision has yet been received. He submits that the applicant should be allowed to remain until such time as this issue has been determined.
[14] Counsel for the respondent refers me to the decision in Yuri Shchelkanov v. The Minister of Employment and Immigration, 76 F.T.R. 151, wherein Mr. Justice Strayer had said that when there is no decision on a tardy application pursuant to subsection 114(2) the Court should not be open to exercise its discretion favourably in granting a stay. It should be noted that in Shchelkanov Strayer J. indicated that there did not appear to be an arguable case; that the irreparable harm was that the applicant would not be able to obtain suitable medical treatment in Russia and he would lose compensation from work he had performed in Canada, illegally. Nevertheless what is central to Strayer J.'s decision is that he suggests that the stay should not be granted unless the judicial review pending in the Court is attacking the validity of the removal order.
[15] The evidence reveals that this applicant has now attempted suicide on three separate occasions. He was arrested and remains in custody; this detention occurred after he was recently released from hospital with instructions to attend a psychiatrist. It is worthy of note that he has always been financially sustained by other members of his immediate family who are legally residing in Canada. I suspect that he was not aware that getting married three days before his departure for Canada in 1990 would affect the validity of sponsorship and subject him to deportation. I doubt very much that this individual could receive proper psychiatric treatment in Vietnam and I note in concluding that he has been here for over nine years and the removal order has remained outstanding for more than five years. A few more months in this country pending a decision of his humanitarian and compassionate grounds application and the determination as to whether or not the Court will grant leave for judicial review of the claimant's attack on the validity of the outstanding deportation order would not in any way impede to any great extent the Minister's duty to properly exercise her functions.
[16] I am satisfied that there is an arguable case and that both irreparable harm and balance of convenience favour this applicant. I am hereby granting a stay of the removal order pending the decision with respect to his application pursuant to subsection 114(2) of the Immigration Act and pending resolution of the applications for leave for judicial review.
[17] With respect to the custody, this matter is to be determined by the Immigration authorities.
JUDGE
OTTAWA, ONTARIO
May 28, 1999