Date: 20001103
Docket: IMM-5090-00
BETWEEN:
NARCISA DE JESUS SANCHEZ AREVALO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is a motion by Narcisa De Jesus Sanchez Arevalo (the "applicant") for an order staying the execution of a Removal Order by which the applicant is to be removed from Canada on November 6, 2000.
[2] The applicant, a citizen of Ecuador, came to Canada in September, 1994 and made a claim of convention refugee status in 1995 which claim was denied in 1998. The applicant filed an application for judicial review of the decision refusing her convention refugee status and the judicial review was not granted. Subsequently, a Removal Order was issued.
[3] In January, 2000 the applicant retained a lawyer to file an humanitarian and compassionate application ("H & C application") on her behalf, which application was filed in March, 2000. No decision has yet been made on this application.
[4] A Call in Notice from the respondent required the applicant to attend at a pre-removal interview on February 26, 2000. The applicant stated that she did not receive this notice until on or around April 17, 2000. On April 18, 2000, the applicant's solicitor notified the respondent of his client's late receipt of the notice. He asked the respondent to defer the applicant's removal until a date after the decision on her H & C application. The respondent refused.
[5] The applicant is employed.
[6] The applicant claims that her removal will have an effect on her both physically and emotionally. She claims she left an abusive husband in Ecuador, who she has since divorced. She swore that her husband had physically abused her to the extent she had to go to the hospital for treatment. She states that the divorce made him more angry with her. She did not report him to the police because of her belief in his political power. If returned, she will have to live with her family, in the same town as her former husband, as she has no employment. She stated that she is fearful for her life if she is returned to Ecuador.
Issue
[7] Should the Removal Order be stayed?
[8] In order to grant a stay of the Order, I must be satisfied that:
| 1. The applicant has raised a triable issue. |
| 2. The applicant will suffer irreparable harm if the stay is not granted. |
| 3. Balance of convenience favours the applicant. |
| [9] I have reviewed the motion material and the application for judicial review and I |
find that the applicant has raised a triable issue.
| [10] With respect to the applicant suffering irreparable harm, I believe that the placing |
of the applicant in an environment where she would most likely suffer physical abuse from her former husband, creates irreparable harm for the applicant. I say this after reading the report from her mental health counsellor. I am particularly referring to the following words, "I also believe that if she is sent back to Ecuador, she will suffer intense emotional harm with consequences to her health that are difficult to predict.".
| [11] I am of the opinion that the balance of convenience favours the applicant. It will |
not take a long period of time to have the leave and if leave is granted, the application for judicial review heard. As well, the policy of the respondent with respect to removals states, in relation to H & C applications where decisions are pending, "If possible, these applications should be reviewed while the applicant is still in Canada.". If the applicant is unsuccessful, the respondent can still have her removed from Canada.
| [12] I would therefore grant the application and stay the applicant's removal until the |
leave for judicial review is denied, and if leave for judicial review is granted, until the application for judicial review is disposed of by the Court.
ORDER
| [13] IT IS ORDERED that the applicant's motion is granted as stated in |
paragraph 12 hereof.
"John A. O'Keefe"
J.F.C.C.
Toronto, Ontario
November 3, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-5090-00 |
| STYLE OF CAUSE: NARCISA DE JESUS SANCHEZ AREVALO |
Applicant
-and-
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
| DATE OF HEARING: MONDAY, OCTOBER 30, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
REASONS FOR ORDER
| AND ORDER BY: O'KEEFE J. |
DATED: FRIDAY, NOVEMBER 3, 2000
| APPEARANCES BY: Mr. Young H. Lee |
| For the Applicant |
| Ms. Diane Dagenais |
For the Respondent
| SOLICITORS OF RECORD: Young H. Lee |
Barrister & Solicitor
69 Elm Street
Toronto, Ontario
M5G 1H2
| For the Applicant |
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20001103
Docket: IMM-5090-00
Between:
| NARCISA DE JESUS SANCHEZ AREVALO |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
| AND ORDER |