Date: 19981006
Docket: IMM-3460-98
BETWEEN:
JOSE EDUARDO PEREIRA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(Delivered from the Bench at Toronto, Ontario
Monday, October 5, 1998, as edited)
EVANS, J.:
[1] This is a motion to stay the removal of the applicant to Portugal which has been scheduled for October 6, 1998. The applicant was ordered deported in April 1998 following his conviction in 1995 for three very serious offences involving the sexual assault of his former wife on two occasions in 1993. He was sentenced to imprisonment for 2 years less a day for these crimes. The applicant, a citizen of Portugal, is now 36 years old, and has lived in Canada since the age of 12.
[2] The applicant appealed to the Immigration Appeal Division (hereinafter "the I.A.D.") against this deportation pursuant to section 70(1)(b) of the Immigration Act, that is, "on the ground that, having regard to the circumstances of the case, the person should not be removed from Canada." In May 1998, the I.A.D. dismissed the appeal.
[3] The applicant subsequently filed an application for leave under section 82.1(1) of the Immigration Act to commence an application for judicial review pursuant to section 18.1 of the Federal Court Act. It is estimated that, if leave is granted, and the application for judicial review is successful, the matter will come before the I.A.D. in between 10 and 12 months' time. The applicant seeks a stay of his removal pending the disposition of the leave application and, if that is granted, the application for judicial review itself.
[4] In its reasons for decision the I.A.D. indicated that it had taken into account and weighed all the factors identified in Ribic v. Canada (Minister of Employment and Immigration) (I.A.D. T84-9623; August 20, 1985) as relevant to the exercise of its discretion under section 70(1)(b). However, counsel for the applicant has submitted that the I.A.D. misapprehended some crucial evidence and made material erroneous findings of fact in a perverse or capricious manner or without regard to the evidence before it, and that its decision is thus liable to be set aside under section 18.1(4)(d) of the Federal Court Act.
[5] A stay of removal may be granted, even where, as here, the validity of the deportation order is not challenged, if the applicant satisfies the Court that the application for judicial review raises a serious issue to be determined, irreparable harm will be caused if the applicant is removed and the balance of convenience favours the maintenance of the status quo pending the disposition of the leave application and the application for judicial review: Toth v. Canada (Minister of Employment and Immigration) (1988), Imm. L.R. (2d) 123 (F.C.A.).
[6] Despite the reluctance of this Court to interfere with either the exercise by the I.A.D. of its statutory discretion under section 70(1)(b), or its findings of fact, in my opinion the applicant has raised a serious question about whether the I.A.D.'s dismissal of his appeal would withstand judicial review under section 18.1(4)(d). For example, the I.A.D.'s treatment of the psychiatric reports on the applicant suggests that its findings of fact respecting the issue of recidivism were made without regard to the evidence before it. The Member arguably substituted her opinion for the psychiatric evidence, which was uncontradicted, on the explanation of the applicant's offences and why they were very unlikely to be repeated. Moreover, in light of the affidavit of the applicant's ex-wife, the psychiatrist's reports and the court-ordered ban on any communication between the applicant and his former wife, the I.A.D.'s findings respecting the applicant's lack of remorse and his failure to apologize to his former wife, and the importance that it attached to them, are arguably unreasonable.
[7] As to the issue of irreparable harm, I was very impressed by the affidavit sworn by the applicant's former wife about the serious affect that the applicant's removal is likely to have on their eight year-old son, for whom the applicant remains a very important figure; even though they only spend every other weekend together, they talk on the telephone between times. To disrupt the relationship between the applicant and his son before the disposition of the leave application and the application for judicial review may well inflict serious harm, although as the applicant's wife stated, if the applicant is ultimately deported, they will have to deal with the situation.
[8] Finally, I find that the balance of convenience favours a stay, despite the public interest in ensuring that deportees who have committed serious criminal offences in Canada are removed without undue delay in accordance with the Minister's statutory duty. However, the adverse impact on the applicant's son of the applicant's removal before the disposition of his possibly successful application for judicial review, the termination of the applicant's child support payments, the loss of his employment, and hardship in being removed from Canada where he has lived since he was 12 years old, in my view, tilt the balance of convenience in favour of a stay.
[9] I have also considered very carefully in this context whether, if he is not removed promptly, the applicant is likely to commit further acts of violence against his former wife, his present common law partner or any other person. I am satisfied on the evidence before me, in particular the thorough, careful and cogent reports from the psychiatrist, Dr. Ben-Aron, who has observed the applicant from time to time since his criminal trial, that there is a very low risk of repetition. I should emphasize that my conclusion is based solely on the evidence before me in this case, and gives no support whatsoever to the conclusion that should be reached in any other case in which a stay is sought by a person who has been found guilty of serious crimes of personal violence, whether perpetrated in a domestic or a non-domestic context.
[10] For these reasons, the removal of the applicant from Canada is stayed pending the determination of the applicant's leave application and, if that is granted, his application for judicial review.
ORDER
The applicant's removal set for Tuesday, October 6th, 1998 at 5:50 p.m. is hereby stayed until such time as the applicant's application for leave to commence Judicial Review proceedings is disposed of by this Honourable Court and, if leave is granted, until the applicant's application under section 18.1 of the Federal Court Act is heard and finally disposed of by this Court.
"John M. Evans"
Judge
TORONTO, ONTARIO
October 6, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-3460-98
| STYLE OF CAUSE: JOSE EDUARDO PEREIRA |
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
DATE OF HEARING: MONDAY, OCTOBER 5, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: EVANS, J.
DATED: TUESDAY, OCTOBER 6, 1998
APPEARANCES: Ms. Arlene Tinkler
For the Applicant
Ms. Leena Jaakkimainen
For the Respondent
SOLICITORS OF RECORD: Arlene Tinkler
Barrister & Solicitor
Suite 2000-393 University Ave.,
Toronto, Ontario
M5G 1E6
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19981006
Docket: IMM-3460-98
Between:
| JOSE EDUARDO PEREIRA |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER