Federal Court Decisions

     IMM-282-97

Between:

     WOTAN TARIK MORALES RIZZO,

     Applicant,

     - and -

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

MULDOON, J.

     The applicant seeks a stay of the execution of his removal from Canada under a conditional removal order of June 24, 1991, a copy of which is exhibit A to his affidavit sworn on January 20, 1997.

     In this case, neither the applicant nor the respondent excites the Court's respect. Both sides have been coy in revealing what should have been cogent evidence. If it were not necessary to render this decision literally within hours, lest these proceedings become moot, it would be quite possible to detail at length the sins of the parties in this regard. Both sides have been incredibly negligent in asserting their respective rights and duties.

     The affidavit of Samuel D. Hyman, the applicant's former solicitor is telling in this regard. He swears (January 16, 1997) as follows:

2. On May 8, 1992 I forwarded by courier a Humanitarian & Compassionate submission pursuant to s. 114(2) of the Immigration Act to then Minister of Employment and Immigration, The Honourable Bernard Valcourt. Attached to this my Affidavit as Exhibit "A" is a true copy of the aforementioned submission.

.....

5. To this present date I have never received a reply to the Humanitarian and Compassionate submissions aforementioned and previously attached as Exhibit "A" herein from either the Minister of Employment and Immigration, the Minister of Citizenship and Immigration or from CIC Vancouver.

    

     Those allegations, apparently never subjected to cross-examination, surely do indict the Minister and the department for failing in their duty to enforce the law in a timely way. The affidavit of Gordon Starr, sworn January 23, 1997, on the respondent's behalf shows that a decision on the applicant's humanitarian and compassionate request was made in the immigration department, all right - it was negative - but counsel concedes that there is no evidence before the Court to show that such negative decision was ever made known to the applicant.

     In the case of Shchelkanov v. M.E.I. (1994), 76 F.T.R. 151, Mr. Justice Strayer then of this Court's Trial Division, in different circumstances wrote this:

[8] The inappropriateness of granting a stay under s. 18.2 of the Federal Court Act is particularly marked when the decision whose review is still pending is one under s. 114(2) of the Immigration Act. Such applications are completely undisciplined: they may be brought at any time and any number of times. One is all too familiar with the pattern of which the events in this case are but an example. A deportation order is issued and is either not attacked in the court or is attacked unsuccessfully. Months or years go by without it being executed, during which time a s. 114(2) application may have been made unsuccessfully or none may have been made. Eventually the deportee is advised that he will be removed on a certain date. Thereafter a s. 114(2) application is made. Either it is dismissed just before the scheduled departure or it has not yet been determined. An application for leave and for judicial review of the s. 114(2) decision is launched and a stay of removal is sought. Presumably it is because deportation is not legally dependent on the proper disposition of such applications that no restrictions are placed in the Act on their timing and frequency. While the handling of s. 114(2) applications requires fairness, the decision is a discretionary one of the kind which the Minister may make either before or after the removal of a person having no legal right to be in Canada. As long as his discretion is exercised on compassionate or humanitarian grounds he may at any time recommend the exemption of any person from any regulation or otherwise facilitate his admission. This is a far ranging power which exists quite independently of the deportation process and neither is dependent on the other. It is true that as a practical matter if a person applies in a timely manner for exemption from the requirement that he must apply for permanent residence from outside Canada, and if it should happen that the Minister exercises his discretion to that end prior to the applicant being deported under an outstanding valid deportation order, he would not have to leave. But that cannot be translated into a legitimate intervention by the court if in fact a s. 114(2) application has not been dealt with prior to his lawfully ordered departure.

[9] It has been suggested that a stay must be granted or otherwise the court's power to review the humanitarian and compassionate grounds application may be rendered "nugatory". I am unable to understand why this should be so in the normal case. For example, it will still be just as possible for a judge of this court to review the leave application on the file pursuant to the rules, even though the applicant is back in the former Soviet Union. If leave is granted it will be possible for the application for judicial review to be heard, such hearings being based on affidavit evidence and the applicant herein having already deposed an affidavit. The court would still be quite able to set aside the s. 114(2) decisions. It is true that a favourable decision by the court may be of less practical value to the applicant if he is not in the country but that does not give him the right to stay here to await it.

[10] As mentioned earlier, there is one situation in which I accept that it would be "appropriate" for the court to issue a stay of deportation pending the disposition of an application for leave or for judicial review of a humanitarian and compassionate grounds decision: namely, where the haste of the Minister in executing the deportation order is interfering with the exercise by this court of its functions in respect of the leave or judicial review application. This could arise, for example, if after rejection of the s. 114(2) application, which had itself been made in a timely way, the deportee did not have a reasonable opportunity to instruct counsel and provide affidavit evidence for use in this court in the leave and review application concerning that rejection. No such circumstances exist in the present case.

[emphasis added]

     That Strayer, J. noted lack of discipline in this sort of proceeding, cuts both ways. It is not only the individual deportee who may evince indiscipline, but as in this case the Minister by his or her departmental officials. To make a negative decision in an humanitarian and compassionate matter and keep it a secret from the subject of the consideration, is surely the worse maladministration of the law of Canada, than the applicant's sitting about and never evincing any interest in whatever had become of his humanitarian and compassionate application - never even enquiring of the department - though as between the applicant's lacks, and the respondent's failure to inform him of the fate of his humanitarian and compassionate request, there is very little on which to award success in these proceedings.

     The respondent has cited a formidable array of jurisprudence to demonstrate that the applicant's circumstances here do not show irrevocable harm or even cognizable inconvenience. That array is set out in the respondent's book of authorities, whose index runs as follows:

Atakora v. M.E.I. (1993), 68 F.T.R. 122

Bada v. M.E.I. (1992), 56 F.T.R. 106

Bajwa v. Secretary of State of Canada (February 24, 1994) IMM-838-94

Blum v. Canada (M.C.I.) (1994), 26 Imm. L.R. (2d) 295

Cheema v. M.E.I. (1991), 44 F.T.R. 154

Da Costa v. Canada (M.E.I.) (1993), 19 Imm. L R. (2d) 295

Duve v. M.C.I. (March 26, 1996) IMM-3416-95

Jones v. M.C.I. (February 24, 1995) IMM-454-95

Kerrutt v. M.E.I. (March 20, 1992) 92-T-191

Klair v. M.C.I. (June 6, 1995) IMM-484-95

Mobley v. M.C.I. (January 18, 1995) IMM-107-95

Moncrieffe v. M.C.I. (November 22, 1995) IMM-3125-95/IMM-3125-95

Naseem v. Canada (Solicitor General) (1993), 68 F.T.R. 230

Okoawoh v. Canada (M.C.I.) (January 10, 1996) IMM -3481-95

Paulwell v. M.C.I. (March 15 1995) IMM-560-95

Ram v. Canada (M.C.I.) (June 21, 1996) IMM-1939-96

Shah v. M.E.I. (1994), 170 N.R. 23 (F.C.A.)

Shchelkanov v. M.E.I. (1994), 76 F.T.R. 151

Tavaga v. Canada (M.E.I.) (1991), 15 Imm. L.R. (2n) 82

Toth v. M.E.I. (1988), 86 N.R. 302

Young v. M.C.I. (January 3, 1997) IMM-2566-96

     If the respondent had not evinced the incompetence of failing to notify the applicant of the negative humanitarian and compassionate decision in a timely manner, or at all, it is probable that the present proceedings would not have occurred. As it is, the respondent has behaved (probably not in the least maliciously) unfairly toward the applicant by depriving him of the timely opportunity to seek such legal remedies as were open to him. Such unfair behaviour calls for redress and overrides, even if, otherwise, the applicant would have had little hope of success. One could say that the overriding unfairness of an effectively secret decision meets all of the tests prescribed in Toth v. M.E.I. (1988), 6 Imm. L.R. (2n) 123 (F.C.A), because of its fundamental pervasiveness. Should the Minister, whether by incompetence or design (of which there is no evidence here), be permitted to operate in secret and still remove unsuspecting (or even indolent) humanitarian and compassionate applicant every time the Minister's servants make an undisclosed negative humanitarian and compassionate decision? Is that the better adminstration of the laws of Canada? This Court has held that the insouciant, unhurried attitude of the Minister's staff toward the applicant's humanitarian and compassionate application was a maladministration of the laws of Canada which evokes this Court's authority either to prevent it or to remedy it: Muñoz v. M.C.I., (IMM-2243-95, September 1, 1995) (F.C.T.D.) [paras. 15, 16 and 17].

     In all this, let it not be thought that this Court applauds the applicant's quiescent, mindless, cow-like placidity in being seemingly uninterested, over 4.5 years, about what ever became of his humanitarian and compassionate application. Such applicants if they become numerous can always be disciplined, as Mr. Justice Strayer hinted in Shchelkanov. The Minister's fault is of the greater import in the hopefully better adminstration of public law, and the Minister ought not to be permitted to succeed in these circumstances. The Minister's counsel evinced a competence which just could not put the Minister' incompetence right. For these reasons which squarely lay the responsibility at the respondent's doorstep the applicant's motion unfortunately must succeed. Maladministration just cannot be permitted to succeed.

     The execution of the applicant's removal is to be stayed until the applicant's latest application for humanitarian and compassionate consideration, the most recent to date, be disposed of and he be accorded full opportunity to seek his lawful remedy for any negative disposition. If the applicant should succeed on either the current humanitarian and compassionate application, or on seeking his lawful remedy if any in the event of a negative humanitarian and compassionate consideration, the execution of his removal from Canada (whether to the U.S.A. or Nicaragua) shall be stayed absolutely. If the above prospective proceedings end negatively for the applicant, or if he fails to pursue them diligently, this stay shall be dissolved. The respondent has brought about this decision by failing to communicate with the applicant.

                             (Sgd.) "F.C. Muldoon"

                                 Judge

Vancouver, British Columbia

January 27, 1997