Date: 19990503
Docket: IMM-199-99
BETWEEN:
AUGUSTO PALOMINO ESPIRITU,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER AND ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] The Applicant filed his judicial review application 13 January 1999, for review of a May 1998 decision that he constituted a danger to the public in Canada. Here there may be a time problem, but there also may be a reason for the delay. However, that is not the point presently at issue. The Applicant now requires an extension of time within which to file his record.
[2] The Respondent, fairly in this instance, does not oppose the application, but does, properly, raise the question of whether there is justification of the delay and evidence of an arguable case. The Respondent goes on to question whether the Applicant has shown that he will be prejudiced should an extension be denied. The Respondent points out that there is not a sworn affidavit, as such, in support of the present application.
[3] A motion need not always be supported by an affidavit, the Rules merely requiring facts to be tendered by affidavit where they are not otherwise on the Court's file. In this instance the Applicant has provided a short statement concluding to the effect that he swears that what he says in the grounds set out in the Notice of Motion is true. I am prepared to accept this document, in support of the motion, for it is apparent that the Applicant is in hiding in Peru and does not have ready access to assistance. There is also correspondence in the Court's file which is of assistance, but which was not written to be self serving.
[4] By way of brief background the Applicant, a Peruvian seaman then incarcerated in Vancouver, after receiving a visit from and advice from the Peruvian consul in July of 1996, gave a statement to police, as a result of which a substantial amount of cocaine was found aboard the ship on which he had been serving. This resulted in the implication of a number of Peruvian Nationals, who have been charged, jailed and who are before the Courts. Unfortunately the Applicant, despite assurances of anonymity given at Vancouver, has been named as the cause of all of this. Those same Peruvian Nationals are particularly annoyed at the Applicant. The result of this is that the Applicant, since deported to Peru, says he is in hiding and that he is in fear of his life.
[5] First, as to delay, it is apparent, from the material already in the Court's file, that the Applicant was deported to Peru the day after he commenced this application for judicial review. Federal Court judges have, from time to time, pointed out that a pending judicial review application is not, in itself, a ground for a stay of a deportation order, for judicial review may be pursued by an applicant who is out of the country. Clearly time limitations, running against an applicant who is acting for himself and who is not in Canada, do become a difficulty. A further factor is that the present Applicant had a family member attend at the Canadian Embassy in Peru to ask for assistance as to Federal Court procedure. The Embassy recommended that the Applicant engage a Vancouver lawyer. The Applicant has corresponded with the Court a number of times in order to obtain information and material. The Applicant's intent to proceed has been established. The delay is appropriately accounted for in this instance.
[6] Second, as to an arguable case, the application is not an easy one. Yet, were the material in the file put into proper form and filed as a record, a judge might find that there were equities favouring the Applicant. In the circumstances, the Applicant satisfies the arguable case criteria.
[7] Third, there is the matter of prejudice. The Applicant, on the advice of the Peruvian consul, assisted with information which did lead to discovery of cocaine hidden aboard the ship on which he served. Unfortunately, as I say despite assurance to the contrary, the Applicant's name was made public and ended up in the Peruvian press. I may take notice of material appearing in the International Press to the effect that drug exporters do not take kindly to what the Applicant, albeit on the advice of his consul, has done. One would expect that the Applicant cannot remain in hiding indefinitely, yet the alternative would be extremely prejudicial. The motion is thus granted.
ORDER
| The Applicant shall have 60 days within which to serve and file his record. The Applicant must also, within that 60 day period, designate a person in Vancouver whose address shall be the Applicant's address for service. |
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
May 3, 1999
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-199-99
STYLE OF CAUSE: Augusto Palomino Espiritu
v.
MCI
MOTION DEALT WITH IN WRITING WITHOUT
APPEARANCE OF COUNSEL.
REASONS FOR ORDER AND ORDER OF
MR. JOHN A. HARGRAVE, PROTHONOTARY
dated May 3, 1999
WRITTEN SUBMISSIONS BY:
Mr. Augusto Palomino Espiritu on his own behalf
Ms. Helen Park on behalf of the Respondent
SOLICITORS OF RECORD:
Morris Rosenberg for Respondent
Deputy Attorney General
of Canada