Digests

Ryan v. Canada (Minister of Citizenship and Immigration)

IMM-5452-01

2001 FCT 1413, Dawson J.

20/12/01

8 pp.

Motion for order staying removal to St. Vincent--Adult applicant, citizen of St. Vincent and Trinidad, arriving in Canada in 1992 as visitor--Left St. Vincent when only one and half years old--Lived in Trinidad until came to Canada --Has 19-year-old son who lives with applicant's mother in Trinidad; 4-year-old son born in Canada--As applicant separated from younger son's father, no choice but to take him with her--Adult applicant having no family in St. Vincent, and if returned there will have no place to live, work-- Advised immigration officer would prefer to go to Trinidad, but told would be returned to St. Vincent--Also has daughter living in Canada who is citizen of Trinidad--If removed, daughter will be alone in Canada--Motion dismissed-- Although serious issue to be tried (whether, when best interests of child at issue, fundamental justice requiring consideration of "better" available destination for removal), applicants not establishing irreparable harm should they be removed from Canada--As to loss of benefit of application for judicial review, something more than mootness must be established in order to constitute irreparable harm--Other-wise, by definition, irreparable harm would exist whenever validity of decision not to defer removal put in issue--Makes no sense to argue applicant should be allowed to stay in Canada so as to be near daughter since daughter having no legal status in Canada and subject of arrest warrant--Loss of school year may, in some circumstances, constitute irreparable harm, but not when speaking of junior kindergarten, and only evidence that child loves school, teachers, doing well--No evidence applicants facing any risk if removed to St. Vincent --No evidence of hardship other than that necessarily incidental to deportation--Irreparable harm must encompass prejudice beyond that inherent in deportation itself--Such prejudice not established--At issue when considering balance of convenience, extent to which granting of stay might become practice which thwarts efficient operation of immigration legislation--Public interest in having system which operates in efficient, expeditious, fair manner and which to greatest extent possible, does not lend itself to abusive practices weighed against potential harm to applicant if stay not granted --Court must not countenance abusive practices--Stay sought in nature of equitable relief--Applicant asserted under oath facts contrary to those advanced, under oath, before CRDD-- Swore in this proceeding that left St. Vincent at one and half, but CRDD stated in its reasons that applicant left St. Vincent in 1992--Argued irreparable harm flowing from separation from daughter in Canada without disclosing daughter's lack of status in Canada--Those who seek equity must do equity-- Where sworn testimony contrary to evidence proffered under oath on prior occasion, explanation should be provided for discrepancy, particularly where evidence touching on point central to motion for stay.