Date: 20000426
Docket: IMM-1261-00
BETWEEN:
EDWIN PATRICIO CARRILLO CABRERA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.
[1] These written reasons confirm those rendered orally by me on March 20, 2000, refusing Mr. Cabrera's eleventh hour application to stay the execution of a deportation order to Quito, Ecuador, scheduled the next day at 5:00 a.m.
[2] The applicant came to Canada as a visitor in 1993; he overstayed his visa and made a refugee claim in March 1996. On March 5, 1996, a conditional deportation order was made against him under section 32.1 of the Immigration Act (the "Act") which, by subsection 32.1(6) of that Act became effective if he was determined by the Refugee Division not to be a Convention refugee and has been so notified.
[3] On November 5, 1997, the Refugee Division determined the applicant not a Convention refugee and on April 2, 1998, a judge of this Court denied him leave to commence judicial review proceedings.
[4] On November 30, 1998, his solicitor requested the processing of an application for permanent residence status within Canada on humanitarian and compassionate grounds. This application was turned down by Citizenship and Immigration Canada ("CIC") on February 29, 2000. On March 6, 2000, the applicant received by mail a direction to report for removal.
[5] On Monday, March 13, 2000, his solicitor filed an application for leave and for judicial review of CIC'S decision; that application is outstanding before this Court.
[6] In support of his stay motion, the applicant says in early March 2000, a doctor to whom he was referred by CIC performed an echogram on him. The doctor indicated the heart murmur which had been first detected in 1996 did not pose a risk to him should he be required to fly to Ecuador. However, this doctor apparently did not furnish the applicant his medical echogram report.
[7] On March 17, 2000, the applicant attended the offices of his own doctor, Dr. B. Kalra and obtained from him a letter dated March 17, 2000 which reads:
| This is to say that Mr. Edwin Cabrera is a patient of mine who is seen today, and is suffering from heart murmur which is not yet diagnosed. He needs further investigation to find the cause of it. |
[8] By letter dated March 16, 2000, Mr. Cabrera's solicitor wrote to the PDRCC Unit of CIC and said that Quito, Ecuador was in the midst of considerable political turmoil and is not a safe place for Mr. Cabrera. He said Mr. Cabrera has never been assessed under the PDRCC category and "we are therefore submitting one on his behalf".
[9] I denied the stay for these reasons:
| (a) I was not satisfied on the material before me, the applicant's medical condition did not permit him to fly to Ecuador. His own doctor's letter of March 17, 2000, did not say so. |
| (b) I construed his March 2000 request for a PDRCC assessment not to be a bona fide one. The Refugee Division turned down his claim in October/November 1997. Under the Immigration Regulations, (the "Regulations") on or after May 1, 1997, it was incumbent upon a failed refugee claimant to apply for landing as a member of the Post-termination Refugee Claimant in Canada Class and to submit such an application no later than fifteen days after the day the person is notified of his failed claim. The applicant did not do so as required by paragraph 11.4(2)(b) of the Regulations and cannot invoke his failure at this time; |
| (c) the applicant did not move this Court in a timely manner; |
| (d) the applicant did not raise any serious issue concerning the lawfulness of the deportation order; |
| (e) I was not satisfied the applicant demonstrated irreparable harm in terms of his separation from his mother and three sisters living in Toronto and the fact his remaining family in Ecuador might be leaving to take up residence in the United States. |
[10] This case is similar to the case of Reddy v. Canada (M.C.I.), [1999] F.C.J. No. 644, decided by my colleague MacKay J. on April 13, 1999.
[11] For all of these reasons, this application for a stay is denied.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
APRIL 26, 2000