Date: 19980903
Docket: IMM-3533-98
BETWEEN:
| MARKO MOUDRAK |
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY J.:
[1] The applicant seeks an order staying a departure order which will become a deportation order if the applicant does not leave Canada by September 6, 1998. This order is sought on an application for judicial review of a decision refusing a request for humanitarian and compassionate consideration pursuant to subsection 114(2) of the Immigration Act.
[2] In the absence of any evidence from the immigration officer who refused the applicant"s application for humanitarian and compassionate consideration, there is no doubt in my mind that the record discloses a serious issue. The immigration officer"s refusal of humanitarian and compassionate consideration was apparently made under the misapprehension that the applicant was not a "dependent son" at the time of his mother"s spousal sponsorship application in late 1993 or early 1994. Counsel for the respondent acknowledges that the applicant was then a "dependent son" within the meaning of the Immigration Regulations, 1978.
[3] According to the immigration officer, the respondent now accepts that the mother"s marriage to a Canadian was and is genuine. Moreover, a decision was made in 1998 to approve her application for landing pursuant to subsection 114(2). Again, on the record before me, the immigration officer emphasized on two separate occasions in his three-page memorandum of June 22, 1998 that the applicant was not a "dependent son" at the time of the spousal sponsorship application. This suggests that his decision of refusing the "son"s" application for humanitarian and compassionate consideration may well have been different if not for this error. There is a serious issue that the immigration officer"s decision was made without regard for the available material.
[4] The applicant"s departure from Canada will result in his loss of employment and the opportunity to pursue his studies in this country. He also alleges a strong emotional dependence on his mother. These factors may not in and of themselves constitute irreparable harm. However, the respondent"s apparently dilatory consideration of the spousal sponsorship application is, in my view, an overriding consideration which argues for a stay. See Rizzo v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J.. No. 124 (QL) (F.C.T.D.); Shchelkanov v. Minister of Employment and Immigration (1994), 76 F.T.R. 151; and Petit v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 505. The respondent has taken over four years to conclude that the spousal sponsorship application was founded on a genuine marriage. Had that determination been made in a timely fashion, the applicant may well have been landed with his mother and not face his current predicament. In addition, the applicant only learned that departmental officials had concluded that his mother"s marriage was and is genuine and that she would be landed when his counsel consulted departmental files shortly before filing this motion. Neither the applicant nor his mother has been advised by the department as yet of the decision to grant landing to the mother even though the determination was made in June 1998 and possibly as early as February 1998. The applicant must now decide whether to leave Canada, and his employment, voluntarily as the result of departmental delay. In these unique circumstances, I have concluded that the factors which might otherwise be characterized as serious inconvenience do constitute irreparable harm.
[5] Similarly, the balance of convenience weighs in the applicant"s favour. The legal requirement that he leave Canada prior to September 6, 1998 may well have been otherwise if the department"s determination that the marriage was genuine had been made in a timely fashion or if his own application for humanitarian and compassionate consideration was not apparently tainted by the error concerning his age.
[6] Counsel for the respondent questioned this Court"s jurisdiction to stay a departure order. Paragraph 27(1)(a ) of the Immigration Regulations, 1978 contemplates the staying of departure orders. See Calderon v. Canada (Minister of Citizenship and Immigration) (1995), 92 F.T.R. 103 and Dugonitsch v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 320 (QL) (F.C.T.D.). For the reasons set out in Petit, supra, I am satisfied that the particular circumstances of this case warrant the exercise of the discretion to grant the stay of the departure order upon an application for judicial review of the negative decision made pursuant to subsection 114(2).
Judge
Ottawa, Ontario
September 3, 1998