Date: 20001026
Docket: IMM-3406-00
Ottawa, Ontario, October 26, 2000
Present: The Honourable Mr. Justice Muldoon.
Between: GABOR HORVATH, ANDREA HORVATH née VAGO,
Applicants
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent
REASONS FOR ORDER and ORDER
1. Introduction
[1] This is a motion for an order staying the execution of the deportation orders made against the applicants. The applicants request that the duration of the stay last until the realization of the later of two events: the finalization of an application for permanent residency made by Gabor Horvath under the Business Immigration Program at the Immigration Section of the Canadian Embassy in Paris, France, or the decision by the Federal Court on an application for leave and for judicial review of the decision to execute the removal of the applicants.
2. Facts
[2] The applicants are a married couple who are citizens of Hungary. Their two young children, aged three and one, were born in Canada and are Canadian citizens by birth.
[3] The applicants came to Canada in July 1996 and unsuccessfully claimed Convention refugee status. On May 11, 1999, Mr. Justice Cullen dismissed their application for leave and for judicial review of the negative refugee decision for failure to file an application record. The applicants then applied to become members of the Post-Determination Refugee Claimants in Canada class (PDRCC). On June 23, 1999, the PDRCC officer refused the claim because the applicants did not submit the application within the required time period.
[4] At the time of the original Convention refugee claim, the applicants were issued a conditional departure order which became unconditional when they were found not to be Convention refugees. The departure order required them to leave Canada within 37 days following the receipt of the decision of their PDRCC application. Because they had not left Canada by the deadline, the departure orders became deportation orders by operation of law. The Horvath family were directed by letter dated June 16, 2000 to report to Pearson International Airport on July 15, 2000 for removal to Hungary.
[5] On June 16, 2000, the same day of the Direction to Report, Gabor Horvath applied for permanent residence under the Business Immigration Program at the Immigration Section of the Canadian Embassy in Paris, France. His wife, Andrea Horvath, was included in the application as an accompanying dependent. At the hearing, there was some disagreement about this evidence. Counsel for the Minister submitted that no record of the Horvath's application existed at the Embassy as of July 6, 2000. Counsel for the Horvaths produced an affidavit by Mr. Horvath dated July 7, 2000 swearing that his immigration consultant applied on his behalf. He also produced a copy of the registered mail receipt for the application which was sent on June 16, 2000. In oral argument before this Court, counsel for the Minister noted that Mr. Horvath's first affidavit incorrectly stated that the date of application was May 15, 2000. Otherwise, counsel for the Minister did not object to Mr. Horvath's affidavit. Given the registered mail receipt and the possibility of processing delay, this Court will accept the evidence that an application was made by Mr. Horvath at the Immigration Section in the Canadian Embassy in Paris for immigration to Canada as a self-employed person.
[6] On June 29, 2000, thirteen days after having applied to the Embassy, the applicants submitted an application for leave and for judicial review to challenge the decision made by the enforcement officer on June 16, 2000 to execute the deportation orders made against the applicants.
[7] Mr. Horvath works as a self-employed contractor and his wife assists him in the operation of his business. The applicants pay income tax and have acquired in excess of $40,000 in assets and have accumulated $5,000 in debt.
[8] As mentioned, the applicants seek to stay the execution of the deportation order for as long as it takes to receive both decisions about the application for permanent residency, and the appeal and judicial review of the enforcement officer's decision to execute the deportation order.
3. Preliminary Issue
Jurisdiction of the Federal Court to adjudicate this motion
[9] Counsel for the Minister raised an initial objection regarding the jurisdiction of this Court to issue a stay in this matter based on s. 18.2 of the Federal Court Act. Section
18.2 of the Federal Court Act states:
| Interim orders 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. |
Mesures provisoires
18.2 La Section de première instance peut, lorsqu'elle est saisie d'une demande de contrôle judiciaire, prendre les mesures provisoires qu'elle estime indiquées avant de rendre sa décision définitive. |
Minister's Submissions
[10] Counsel for the Minister submits that the Federal Court does not have the jurisdiction to issue a stay to prevent the execution of a removal order if the validity of the removal order is not in dispute. Here, the applicants are challenging the execution of the order, and not the order itself. In effect, they are challenging when they should report for removal, not whether they should report for removal. Under these circumstances, this Court does not have the jurisdiction to entertain the motion.
[11] Counsel for the Minister cites Shchelkanov v. M.E.I. To support his position. In Shchelkanov, Mr. Justice Strayer was of the view that the Court should not grant a stay of deportation pending determination of a judicial review where the judicial review pending in the Court is not an attack on the deportation order but rather an attack on the Minister's action or inaction in respect of an application for a discretionary decision in the applicant's favour pursuant to s. 114(2). In outlining the circumstances in which the Court may grant an interlocutory injunction, he stated:
[7] In my view it is appropriate to issue interlocutory injunctions or stays only when there is an allegation (amounting to a serious question) that the defendant or respondent is doing, or about to do, something unlawful. (The sole exception to this could arise where the defendant or respondent is acting in such a way as to impede the due operation of Court processes, a matter to which I will return later). The importance of this requirement can be appreciated if one looks to the order the Court could make on final determination of the case before it. If the Court could not, at the end of the process, permanently enjoin or prohibit the activity whose interim stay is sought, on what basis can that activity be stopped by the Court on an interim basis? The premise of an application for a stay should be: assuming everything the applicant alleges is ultimately proven, then the act complained of could be prohibited, and it should be prohibited on an interim basis because of the irreparable harm the continuation of this illegal act will cause in the meantime
...
[10] As mentioned earlier, there is one situation in which I accept that it would be "appropriate" for the court to issue a stay of deportation pending the disposition of an application for leave or for judicial review of a humanitarian and compassionate grounds decision: namely, where the haste of the Minister in executing the deportation order is interfering with the exercise by this Court of its functions in respect of the leave or judicial review application. This could arise, for example, if after rejection of the subsection 114(2) application, which had itself been made in a timely way, the deportee did not have a reasonable opportunity to instruct counsel and provide affidavit evidence for use in this Court in the leave and review application concerning that rejection. No such circumstances exist in the present case. (Shchelkanov).
[12] In written submissions, counsel for the Minister also relies upon several decisions from this Court to support his argument including Esaydaye Singh v. M.C.I., Mabel Brossard De Portiansky v. M.C.I., Garganis v.M.C.I., Isahak Elmi Ali v. M.E.I., and Paul v. M.C.I..
[13] Counsel for the Minister notes that the applicants failed to challenge the removal orders which were in existence for over a year until such a time as they were directed to leave. They cannot now ask the Court to stay the execution of orders they themselves consider to be lawful.
Applicants' Submissions
[14] Counsel for the applicants submits that a diversity of opinions exists within the Court, and until the issue is settled, the Court should grant the stay.
[15] The applicants' counsel cites Muncan v. M.E.I. to support a wider approach to the exercise of discretion. In Muncan, Mr. Justice Campbell summarizes the s.18.2 jurisprudence, and holds that there is no jurisdictional bar to limit the discretion which this Court is empowered to apply under s. 18.2:
As I said in my oral reasons, I find there is no jurisdictional limit to the discretion that I am empowered to apply under s.18.2. The whole question of whether the discretion should be exercised relates to the merits of each individual case.
Regarding an application for a stay of a removal order under the Immigration Act, it seems to me that the issue is whether it is fair and just to grant it. While it is true that the Minister of Citizenship and Immigration has discretion to issue a removal order while a judicial review application respecting a person's immigration status is pending, it is also the right of the person subject to removal to apply under s.18.2 for a stay of the removal order. If a stay application is made, clearly it is not the legal worth of the deportation order that is in question. The question is whether it is "appropriate", to use the standard set by Strayer J. in Shchelkanov, to allow the removal order to take effect while the judicial review is pending. The answer to this question requires an analysis of all the facts in the legal and practical context of the applicant's case.
Thus, in considering the entire context in deciding whether to exercise the discretion provided under s.18.2, I find it is far too technical a perspective to require the deportation order to be challenged on judicial review or to limit the application of the appropriate injunctive test to the circumstances of the deportation order itself. (Muncan)
[16] In Melo v. M.C.I., Mr. Justice Pelletier eschews the reasons from Shchelkanov and adopts the reasons from Mr. Justice Noël in Bal v. M.E.I. He then states:
Whatever the Court of Appeal decided in Akyampong supra, that case has not been followed and its authority is therefore in doubt. The various theories as to the source of this Court's jurisdiction to stay a deportation order pending the disposition of a collateral proceeding must remain theories until the Court of Appeal decides the issue directly if it is able to do so, or indirectly, if it has occasion to consider the scope of section 18.2 of the Federal Court Act in other proceedings. The humanity and common sense of Noël J.'s approach to the issue commend themselves to me and I adopt it as my own. I find that Shchelkanov and those cases which follow it do not, with respect, preclude me from granting a stay even if the deportation order itself is not in question. (Melo)
[17] Finally, in Hosein v. M.E.I., Mr. Justice Mackay held that the provisions of s.18.2 provided the court with the jurisdiction to issue an interim stay in situations where there was an application for judicial review before the Court. He noted:
In my view the Court's jurisdiction to order a stay of proceedings is not limited by section 18.2 of the Federal Court Act by the necessity to apply for leave to seek judicial review, and in an appropriate case, particularly one where the issue raised in an application for leave is arguable, but would be moot or the jurisdiction of the Court would be rendered nugatory by failure to grant a stay, a stay may be ordered within the discretion of the Court. (Hosein)
Mu_oz and Rizzo
[18] In Mu_oz v. M.C.I., this Court stated the following regarding the jurisdiction of the Court:
The respondent's counsel not only challenged this Court's jurisdiction to entertain this stay application, but she also cited in support of the proposition the case of Shchelkanov v. M.E.I., (1994) 76 F.T.R. 151. It is often assumed by many jurists of great learning that this decision of Mr. Justice Strayer strips this Court of jurisdiction in applications for stay of removal unless the legality of the removal order be directly challenged. This judge, as recently as August 28, invoked that decision in the case of Owusu v. M.C.I., IMM-2247-95. There the applicants had been unsuccessful on every assessment which they could have from PDRCC to h. & c., but they did have those assessments unlike the applicants here. No stay, accordingly, was granted but the Court, on the basis of the Shchelkanov case, inter alia, declined to strip itself of jurisdiction "because then the Court could not act in some unforeseen, egregious circumstance". (Today, that line could seem, to the credulous, to be clairvoyant, but this judge never claims clairvoyance.) What is revealed here is indeed egregiously unjust. Thankfully, the Court has the jurisdiction to deal with it.
Sometimes, perhaps too rarely, judges who apprehend that the law's strictness will lead to certain and obvious injustice, invoke this residual jurisdiction to permit an out-of-the-usual adjudication, as did Madam Justice Simpson in her interesting, intellectually stimulating and unusual judgment in Calderon v. M.C.I., IMM-5067-94, a decision rendered by her on June 16, 1995, [1995] F.C.J. No. 955.
...
So in the extreme circumstance evinced here, where the applicants simply cannot obtain a highly likely favourable h. & c. review in a timely way, the Court will and does exert its jurisdiction to prevent injustice, and to rescue the better administration of this law of Canada, subsection 114(2) of the Immigration Act. Be it noted that the Court and the Constitution both refer to the better, not just the due, and certainly not the crippled, administration of this law of Canada. (Mu_oz)
[19] Finally, in Rizzo v. M.C.I., this Court emphasized the importance of retaining jurisdiction to remedy maladministration of law
This Court has held that the insouciant, unhurried attitude of the Minister's staff toward the applicant's humanitarian and compassionate application was a maladministration of the laws of Canada which evokes this Court's authority either to prevent it or to remedy it: Mu_oz v. M.C.I. (Rizzo)
Decision: Jurisdiction
[20] Thus, this Court will dismiss the Minister's preliminary objection and retain jurisdiction over this matter. Notwithstanding that members of the Trial Division hold different opinions, this Court has previously held that it should retain jurisdiction to relieve against maladministration of justice. This posture requires the Court to review the motion on its merits by evaluating the criteria from Toth v. M.E.I. to determine whether a stay is warranted in the circumstances of this case. The profound problem with the line of decisions espousing a denial of jurisdiction is that it seems to accord unchallengeable powers to the Minister, that which Parliament has not done, or dared to do.
Toth Test
[21] In Toth, the Federal Court of Appeal ruled that the criteria from Manitoba (A.G.) v. Metropolitan Stores Ltd must be considered in deciding whether to grant a stay in immigration matters. Therefore, the applicant must first demonstrate a serious issue to be tried, then the applicants must establish that they will suffer irreparable harm if the relief be not granted, and finally the Court must assess the balance of convenience between the parties.
Part 1: Serious Issue
Applicants' Submissions
[22] The applicants submit that a serious issue exists because they intend to challenge the decision of the enforcement officer for failing to account for the interests of their children. The applicants cite Francis (Litigation Guardian of) v. M.C.I. to support this position.
[23] In Francis, the mother of two Canadian-born children was ordered deported. The children were refused leave to apply for judicial review by the Federal Court and the mother had exhausted her remedies in the Federal Court. The children brought an application in the Ontario Court (General Division) seeking, inter alia, an order quashing the deportation order. They alleged that the deportation violated their rights under the Canadian Charter of Rights and Freedoms. Mr. Justice McNeely granted the application and quashed all deportation orders against the mother. The Minister successfully appealed to the Ontario Court of Appeal which overturned McNeely J.'s decision. On June 1st, 2000, an application for leave to appeal to the Supreme Court of Canada was granted, as is usual, without reasons. The applicants submit that the act of granting leave to appeal indicates that the Supreme Court of Canada has decided that this issue involves a question of national public importance. Therefore, the first part of the Toth test is met because the applicants' case involves a similar issue as in Francis.
[24] The applicants also rely on New Brunswick (Minister of Health and Community Services) v. J.G. to assert that section 7 of the Charter applies to civil proceedings. The issue in J.G. was whether indigent parents have a constitutional right to be provided with state-funded counsel when a government seeks a judicial order suspending such parents' custody of their children. The Supreme Court of Canada held that the New Brunswick government was under a constitutional obligation to provide the appellant with state-funded counsel in the particular circumstances of the case. Although the issue was moot by the time it reached the Court, the Court decided that the intrusive behaviour of the state in removing a child from a parent triggered the parent's section 7 right to "security of the person." A minority of the Court also held that the parent's section 7 right to"liberty" was also triggered. Counsel for the applicants here refer to J.G. to outline that decisions by the state involving children are decisions which affect the "security of the person" and attract the protection of section 7 of the Charter.
[25] The applicants cite Paterson v. M.C.I. to illustrate the principle from J.G. In Paterson, Madam Justice Reed stayed the deportation order in the circumstances of that case:
This is not the place to undertake an analysis of the meaning of "the principles of fundamental justice" in section 7, and whether they operate to require that provisions of international human rights conventions, signed by Canada, must be considered by decision makers when making decisions that affect the security of the person.
It suffices to say that given the particular facts of this case, and the several arguments made by counsel that are set out above, I have been persuaded that there is a serious issue to be tried. (Paterson)
[26] Finally, the applicants intend to argue at the judicial review proceeding that the enforcement officer made perverse statements when he noted that no H & C application was pending in the applicants' case. This statement wrongly implies that the applicants did not try to regularize their status, whereas the applicants are in fact trying to regularize their status through the Business Immigration Program.
Minister's Submissions
[27] The Minister's counsel asserts that no serious issue arises in this motion because it is not for the enforcement officer to decide what is in the best interests of the children. Counsel cites Simoes v. M.C.I. to support this position. In Simoes, a citizen of Jamaica brought a motion for an order to stay her deportation pending the determination of her H & C application, or pending the consideration of her application for a declaration requiring the Minister to consider the best interests of her two Canadian children prior to any determination to execute the removal order. Mr. Justice Nadon stated:
[7] In the motion before me, the Applicant seeks a stay of the execution of this Removal Order and submits that there are two interconnected serious issues to be tried. First, the Applicant submits that the Enforcement Officer should have deferred the removal of the Applicant on the basis of her outstanding H & C application and on the basis of the best interest of her two Canadian children. During the motion hearing, counsel for the Applicant submitted that the Enforcement Officer erred in not deferring the Removal Order given the pending H & C application involving Canadian children. In this regard, he cited Baker v. Canada, [1999] 2 S.C.R. 817 as standing for the principle that the best interests of the children should always be considered.
[8] However, counsel also conceded that it is not within the Enforcement Officer's mandate to consider the best interests of the children [See Note 5 below] and that the fact that the Officer did in fact consider the children's interests [See Note 6 below] constitutes an error reviewable by this Court.
Note 5: This is clearly within the mandate of the officer considering the applicant's H & C application.
Note 6: Counsel refers to the following passage of the Officer's May 23, 2000 Notes: "Counsel also asked if the best interests of the children had been taken into account. I advised subject and counsel that this indeed had been the case."
[9] In my view, this argument is inconsistent for the following fundamental reason: how can there be a serious issue with respect to an Enforcement Officer's "duty" to defer given a pending H & C application involving Canadian children, when counsel for the Applicant simultaneously argues that such an officer cannot consider the best interests of the children and that it was an error to do so? (Simoes)
[28] Therefore, if it does not fall upon the enforcement officer to consider the best interests of the children, then no issue arises when the enforcement officer does not do so. However, despite the officer's not being required to consider the best interests of the children, counsel for the Minister suggests that he did so nonetheless.
[29] With respect to the application of Baker v. M.C.I., Nadon J. continues in Simoes:
[10] In this respect, the case at bar is similar to Marcus Fabian Emmanuel, [2000] F.C.J. No. 674, and The Minister of Citizenship and Immigration, Court Docket IMM-2465-00, dated May 17, 2000, which dealt with a stay of a Direction to Report for Removal. In that case, the Applicants argued that a serious question arose with respect to the application of Baker in a stay of a removal order. Dawson J. rejected this argument, and noted the following at paragraphs 11-12:
For a serious issue to be established, the issue must arise out of the underlying application and an evidentiary basis must exist to support it.
Here, the underlying application seeks to quash a direction to report for removal, not the deportation order. A serious issue as to the applicability of Baker does not, in my view, arise out of the issuance of a direction to report in this circumstance.
[11] I am in complete agreement with the view expressed by Dawson J. In my opinion, Baker does not require a removal officer to undertake a substantive review of the children's best interests, including the fact that the children are Canadian. This is clearly within the mandate of an H & C officer. To "read in" such a mandate at the removals stage would, in effect, result in a "pre H & C" application, which in my opinion, is not what the law requires. Section 48 of the Immigration Act provides the following: "Subject to sections 49 and 50, a removal order shall be executed as soon as reasonably practicable." Sections 49 and 50 deal with statutory stays of execution in certain defined circumstances; for instance, where an applicant has filed an appeal which has yet to be heard and disposed of, or where there are other proceedings.
[12] In my opinion, the discretion that a removal officer may exercise is very limited, and in any case, is restricted to when a removal order will be executed. In deciding when it is "reasonably practicable" for a removal order to be executed, a removal officer may consider various factors such as illness, other impediments to travelling, and pending H & C applications that were brought on a timely basis but have yet to be resolved due to backlogs in the system...For instance, in this case, the removal of the Applicant scheduled for May 10, 2000 was deferred due to medical reasons, and was rescheduled for May 31, 2000. Furthermore, in my view, it was within the removal officer's discretion to defer removal until the Applicant's eight-year old child terminated her school year... .
[13] With respect to pending H & C applications, certainly, the mere existence of such an application cannot bar the execution of a valid removal order... "To hold otherwise," as Noël J. aptly observed, "would, in effect, allow claimants to automatically and unilaterally stay the execution of validly issued removal orders at their will and leisure by the filing of the appropriate application. This result is obviously not one which Parliament intended."...
[14] Regarding H & C applications involving Canadian children, I cannot subscribe to the view submitted by the Applicant -- namely, that the removal officer must defer removal of a parent with Canadian children pending the determination of their H & C application. The Applicant seeks a declaration ordering the Enforcement Officer to consider the best interests of the Applicant's children before executing the Removal Order. As I have indicated, section 48 which governs removal officers cannot be so interpreted. In this regard, the Federal Court of Appeal affirmed the following in Langner v. M.E.I., (1995) 184 N.R. 230 at 232:
Proceeding by way of an action for a declaratory judgment, the appellants are essentially asking this court to do nothing less than to declare that the mere fact that these people, who otherwise have no right to remain in Canada, have had a child in Canada prevents the Canadian Government from executing a deportation order that has been validly made against them. In short, one wold need only have a child on Canadian soil and argue that child's Canadian citizenship rights in order to avoid the effect of Canadian immigration laws and obtain indirectly what it was impossible to obtain directly by complying with those laws.
Moreover, with respect to separating children from their parents, the Court of Appeal stated the following at page 234, still in Langner:
...a child has no constitutional right never to be separated from its [sic] parents: we need only consider imprisonment, extradition, and even divorce, for confirmation that the child's right is to be where its best interests require it to be, and it is not necessarily in a child's best interests to be in the company of its [sic] parents.
[15] In effect, this confirms that the best interests of the child are an important consideration, but not one which, in and of itself, can preclude the enforcement of the law -- for instance, in the form of a removal order. This is reflected in the Convention on the Rights of the Child, Can. T.S. 1992 No. 3 which not only addresses the best interests of children at article 3(1)..., but also envisions the possibility of separation of children from their parents in the context of detention, deportation, imprisonment, or death.
...
In my view, it is clear that the purpose of this Convention is to protect the child's well-being, not to prevent a government from deporting or imprisoning a parent. In short, the existence of a child cannot bar a government from enforcing its laws in the absolute manner suggested by the Applicant. In this regard, I am therefore of the view that there is no serious issue. (Simoes) (emphasis added).
[30] Following Mr. Justice Nadon's initiative in Simoes, counsel for the Minister also invokes Langner v.M.E.I. to support his position. In Langner, a couple asked the Court to issue declaratory judgments that by reason of the presence in Canada of their two Canadian children, the citizenship interests of the latter were such that it completely protected the parent from any deportation proceedings. The Court of Appeal upheld Mr. Justice Denault, who dismissed the application at trial:
[5] At trial, Mr. Justice Denault dismissed the appellants' application. He was entirely correct to do so.
[6] The Canadian Charter of Rights and Freedoms can have no application in this case. The appellant parents' decision to take their children to Poland with them or to leave them with family members living in Canada is a decision which is their own to make and which, to all appearances, they will make in the best interests of the children. The Canadian Government has nothing to do with this decision, which is of strictly private interest. There is no government action in this case which could bring the Charter into play. (Langner)
[31] Although the comments from the Federal Court of Appeal in Langner were not informed by the decision in Baker, the decision by Nadon J. in Simoes was made after Baker. Therefore, Simoes appears to be good authority upon which the Minister may rely to deport the applicants.
[32] With respect to the children, contrary to the contention of the applicants, the enforcement officer thoroughly reviewed the file to take account of the children's interest. The enforcement officer recorded the following notes:
· . both children born in Canada and any decision affecting the parents will have a profound impact on the children.
· . welfare check shows no recent history of welfare.
· . their refugee claim could, charitably, be described as frivolous.
· . Clients are currently on an effective removal order. As such they have no status. As well they have not applied for humanitarian and compassionate review of their case an have told me they do not wish to make such an application. Instead they have made an overseas application to be granted an immigrant visa by the Canadian embassy in Paris. They want to remain in Canada because a part of application is based on their business in Canada which will be nonexistent if they leave Canada. Under these circumstances, there is no legal process for them to remain in Canada. Moreover, if they are granted an interview, then they would have to effect their removal anyways, with no guarantee of re-admission to Canada. In fact, they would have to apply & receive Minister's consent before ever returning to Canada.
...
. With regard to the children, I have also considered their interests. As Canadians they have the rights and benefits which all Canadians enjoy. However, allowing parents to work illegally in Canada is not one of those rights. Under different circumstances it may be possible to allow parents to stay in Canada, in part to benefit the children, if the parents were firmly on the path to regularizing their status. As such, the only comforts which I can offer to the Canadian born children is to arrange the removal in a manner which is as undisruptive to the family as possible. I have made absolutely certain that the parents are aware of their appeal rights and they have a reasonable opportunity to exercise those rights. Moreover, if they decide to leave without going to Court, or in any event, they have a reasonable opportunity to settle their affairs and leave peacefully. For all these reasons my decision is to proceed with the removal.(Enforcement Officer's Notes) (emphasis added)
Decision: Serious Issue
[33] RJR-MacDonald Inc. v. Canada (A.G.) establishes that the Court should determine the test at the first stage on the basis of common sense and an extremely limited review of the merits. The threshold to satisfy this test is a low one. Given this guidance, this Court holds that a serious issue exists here. The issue of protection of the children may be validly argued at a later judicial review proceeding.
[34] Although a serious issue exists here, this Court specifically rejects the applicants' assertion that counsel does not have to present evidence of a serious issue here, because the Supreme Court of Canada has granted leave to appeal in Francis. That the Supreme Court of Canada grants leave to appeal a case may provide such evidence when the issue under appeal is obvious from the lower court decisions. However, this Court cannot presume to guess which issue forms the basis of the decision to grant leave to appeal when many potential issues infuse a case. A serious issue exists here independently of the leave to appeal in Francis.
Part 2: Irreparable Harm
Applicants' Submissions
[35] The applicants submit that their removal from Canada will result in irreparable harm because their business will suffer and collapse. They claim that their business earned $60,000 in sales last year and that they had a combined net income of $22,000. They anticipate earning $100,000 in sales next year. Additionally, they have accumulated $40,000 in assets and $5,000 in debts.
[36] The applicants rely on Toth where the Federal Court of Appeal held that there was a reasonable likelihood that the applicant's family business would fail if the applicant were deported and that the immediate family as well as others who are dependent on the family business would suffer.
Minister's Submissions
[37] The Minister disputes the evidence with respect to the extent of the applicants' business. The Minister believes that the applicants have inflated their claims with regard to their past and future income. The tax returns demonstrate that their combined net income was approximately $22,000, which is significantly lower than their supposed gross incomes. At best, this appears to be a small enterprise, which the applicants can easily move to Hungary. Moreover, the Minister disputes the bank statements because the applicants have intermingled personal and business expenses. Finally, the Minister states that the applicants ignored a valid removal order and have accumulated assets and debts while working illegally in Canada. According to the Minister's view of the matter, had they left when they were required to, they would have suffered no harm.
[38] The Minister cites Sanchez v. M.C.I. for the proposition that closing a business does not always constitute irreparable harm.
[7] The fact that he may have to make arrangements to close his business and have some goods shipped from his residence in Canada to his new residence in Costa Rica does not constitute irreparable harm. He has been aware of the deportation order since October 2, 1995, and does not seem to have taken any steps since then to wind down his business. (Sanchez) (emphasis added)
[39] The applicants were aware of the removal order one year ago and took no action to wind down their business. The Minister also cites Siljanovski v. M.C.I. where Mr. Justice Blais commented that the need to close a business is not necessarily constituting irreparable harm.
[40] Counsel for the Minister notes that in Toth, the Court had evidence before it of a business. Here, it is asserted, no such evidence exists. At the most, the evidence demonstrates a marginal enterprise in which the applicant would suffer no harm apart from the inconvenience of shipping his tools to Hungary.
[41] Finally, in response to the submission that the applicants would not be able to sustain a livelihood in Hungary, counsel for the Minister argues that Mr. Horvath has graduated from high school and holds a vocational certificate as a technician and machine repairman in the chemical and food industries. He has been self-employed in the renovation business and has worked as a translator in the past. Therefore, the applicants are well qualified to resume work in their native Hungary.
Decision: Irreparable Harm
[42] The applicants will not suffer irreparable harm if they are deported. Despite the claims of the applicants, the Minister correctly states that the evidence demonstrates that this is a small business. The applicants have provided no evidence to the contrary, nor have they supported their claims of earning $100,000 in sales next year. Moreover, the jurisprudence demonstrates that the winding down of a business does not always constitute irreparable harm. Finally, the evidence demonstrates that the Horvaths have skills that will permit them to earn a living in Hungary. Therefore, no irreparable harm will ensue between the time they leave Canada and the time that the judicial review or status decisions are made. Finally, the appellants do not need to be separated from their children because their children can accompany them back to Hungary.
Part 3: Balance of Convenience
Applicants' Submissions
[43] The applicants submit that the balance of convenience favours them because the Minister had ample opportunity to execute the deportation order and did not do so. The deportation order not having been executed, the applicants claim to have become established in Canada. Removing them is less convenient than letting them stay here while awaiting a decision about their status. It matters not how the applicants go about regularizing their status: they have chosen to do so by application under the Business Immigration Program.
Minister's Submissions
[44] A dangerous precedent will result if the applicants are granted a stay in this matter. Many thousands of applicants around the world file similar applications in queue at visa posts abroad. They do not, as these applicants have done, come to Canada and apply in this manner. It renders nugatory the requirement that candidates for immigration must apply from abroad, unless subsection 114(2) of the Immigration Act applies, and humanitarian and compassionate grounds exist which eliminate this requirement. The applicants had ample opportunity to leave the country. Moreover, they had ample opportunity to regularize their status. They chose to do neither. Therefore, the balance of convenience favours the minister to uphold the legislation and to deport the applicants.
Decision: Balance of Convenience
[45] The balance of convenience weighs heavily in favour of the Minister in this case. By proceeding in this manner, the applicants render nugatory the requirement that candidates for immigration must apply from abroad unless subsection 114(2) of the Immigration Act applies. If the Court grants this motion, anybody who desires to avoid removal from Canada needs only to submit an application to a Canadian Embassy abroad and the Minister's hands would be tied until a decision is made. Such a decision may be long in coming. Moreover, because they are under a valid deportation order, the applicants are not allowed to return to Canada after an interview in Paris without a Minister's permit. If the Court grant this motion, the applicants would effectively by-pass this requirement as well.
[46] On June 23, 1999, the applicants were notified by letter that they were not members of the PDRCC class and were given 37 days to leave Canada. They ignored the order and took no action to regularize their status from within Canada. For example, they chose not to file a humanitarian and compassionate application under subsection 114(2) of the Immigration Act. The applicants did nothing until June 16, 2000, one year later, when they were ordered to report to Pearson International Airport for removal to Hungary. That very day, they submitted an application for immigration to the Canadian Embassy in Paris, France. Two weeks later, on June 29, 2000, they submitted an application for leave and for judicial review to challenge the decision to execute the valid deportation order. The applicants now ask this Court to grant a stay to allow them time to contest the execution of the deportation order. The applicants had sufficient time in the year preceding the execution of this order to contest it. No maladministration of justice exists in this case. In fact, as a result of having waited so long to take action, the applicants are under a self-inflicted deadline which will not be extended by this Court. The applicants are free to carry on with their application for appeal and for judicial review from outside Canada. As this Court stated in Owusu v. M.C.I.:
Perhaps they will do what they should have done all along, and apply "on the up and up" from outside Canada. This Court has nothing against them: they seem to be decent people who could become valued Canadian citizens, but they must achieve their objective, if at all, according to law. (Owusu)
O R D E R
This motion is dismissed. Although the applicants have demonstrated that a serious issue exists, they failed to show that irreparable harm would occur to them if they were to be deported to Hungary. Moreover, the lateness of their efforts and the methods chosen to regularize their status favour the Minister on a balance of convenience.
Judge