92-T-185
Transito Membreno-Garcia (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
INDEXED AS: MEMBRENO-GARCIA V. CANADA (MINISTER OF
EMPLOYMENT AND IMMIGRATION) (TD.)
Trial Division, Reed J.—Ottawa, June 11 and 18,
1992.
Immigration — Deportation — Application for stay of
deportation order pending outcome of Federal Court Act, s. 18
application to have negative credible basis finding quashed —
Deportation order issued day adjudicator and Board member
finding refugee status claim without credible basis — Applica
tion for leave to commence s. 18 proceedings filed within 3
months of issuance of deportation order and credible basis
finding — Present application founded on applicant's fear of
death or torture and imprisonment if returned to El Salvador
— Application allowed — Not necessary to attack deportation
order directly: sufficient to attack underpinning decision find
ing no credible basis for refugee status claim — If credible
basis decision invalid, deportation order invalid as well —
Court having jurisdiction to grant stay where deemed appro
priate to ensure Court process not rendered nugatory by execu
tion of order — New Federal Court Act, s. 18.2 enabling Trial
Division, on application for judicial review, to make such
interim orders as considered appropriate pending final disposi
tion of application — Criteria to determine whether stay
appropriate: arguable case, irreparable harm, balance of con
venience, all met — With respect to balance of convenience,
usual public interest considerations not in issue — Though risk
granting stay might become practice thwarting efficient opera
tion of immigration legislation, justifiable where stay criteria
all met, and where no delay in challenging decision or in seek
ing stay of deportation order once leave granted — Stay
request at last minute normally refused as "time-buying"
manoeuvre.
APPLICATION for a stay of a deportation order
pending the outcome of an application under section
18 of the Federal Court Act to quash the finding by a
"credible basis" tribunal that the applicant's claim for
Convention refugee status had no credible basis.
Application allowed.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Human Rights Act, S.C. 1976-77, c. 33.
Federal Court Act, R.S.C., 1985, c. F-7,. s. 18 (as am. by
S.C. 1990, c. 8, s. 4), 18.2 (as enacted idem, s. 5).
Immigration Act, 1976, S.C. 1976-77, c. 52.
CASES JUDICIALLY CONSIDERED
APPLIED:
Toth v. Canada (Minister of Employment and Immigra
tion) (1988), 6 Imm. L.R. (2d) 123; 86 N.R. 302 (C.A.).
DISTINGUISHED:
Akyampong v. Canada (Minister of Employment and
Immigration), A-533-91, Hugessen J.A., judgment dated
27/3/92, F.C.A., not yet reported; Okyere-Antwi v.
Canada (Minister of Employment and Immigration),
A-413-92, Hugessen J.A., judgment dated 27/3/92,
F.C.A., not yet reported; Lodge v. Minister of Employ
ment and Immigration, [1979] 1 F.C. 775; (1979), 94
D.L.R. (3d) 326; 25 N.R. 437 (C.A.); Asumadu v. Minis
ter of Employment and Immigration (1988), 113 N.R. 150
(F.C.A.); Manitoba (Attorney General) v. Metropolitan
Stores Ltd., [1987] 1 S.C.R. 110; (1987), 38 D.L.R. (4th)
321; [1987] 3 W.W.R. 1; 46 Man. R. (2d) 241; 25 Admin.
L.R. 20; 87 CLLC 14,015; 18 C.P.C. (2d) 273; 73 N.R.
341.
COUNSEL:
Jonathan Chaplan for applicant.
Howard A. Baker for respondent.
SOLICITORS:
Jonathan Chaplan, Ottawa, for applicant.
Deputy Attorney General of Canada for respon
dent.
The following are the reasons for order rendered in
English by
REED J.: The applicant filed for a stay of a deporta
tion order which had been issued against him on Feb-
ruary 27, 1992. This application was heard by tele-
phone conference on June 11, 1992, and an order
issued with respect to which I indicated reasons
would be filed in due course. The respondent argued
that this Court had no jurisdiction to grant a stay in
the present circumstances because the applicant does
not attack the validity of the deportation order. Sec
ondly, even if such jurisdiction exists, it is argued
that the applicant has not demonstrated that the cir
cumstances of his case meet the requirements for the
issuance of a stay.
The applicant applied for refugee status on arrival
in Canada on July 8, 1991. The foundation of this
application is the applicant's fear that if he is returned
to El Salvador he will be killed or tortured and
imprisoned.
On February 27, 1992, it was decided by the adju
dicator and the Board member presiding at the appli
cant's immigration inquiry that there was no credible
basis to the applicant's claim for Convention refugee
status. A deportation order was issued by the adjudi
cator on that same date. On May 21, 1992, Mr. Jus
tice Cullen granted the applicant leave to commence
proceedings pursuant to section 18 of the Federal
Court Act, R.S.C., 1985, c. F-7 [as am. by S.C. 1990,
c. 8, s. 4], by means of which he seeks to have the
decision which found that there was no credible basis
to his claim quashed. The applicant now seeks a stay
of the deportation order pending the outcome of that
appeal.
The respondent argues that there is no jurisdiction
in this Court to grant a stay because the applicant
does not challenge the validity of the deportation
order. The applicant responds that the validity of that
order is placed directly in question by attacking the
validity of the no credible basis decision. The depor
tation order flows directly from that and indeed was
issued the same day by the adjudicator who presided
over the immigration inquiry which made the no
credible basis decision.
The respondent's argument is based on the Federal
Court of Appeal's decision of March 27, 1992 [not
yet reported], in Okyere Akyampong v. The Minister
of Employment and Immigration, (A-533-91)
[indexed as: Akyampong v. Canada (Minister of
Employment and Immigration)] and Esther Okyere-
Antwi v. The Minister of Employment and Immigra
tion, (A-413-92) [indexed as: Okyere-Antwi v.
Canada (Minister of Employment and Immigration)].
I note that in those cases the defect found by the Fed
eral Court of Appeal appears to have been a matter of
improper pleading because leave to amend was given
to allow the applicants to cure the defect.
In the present case, the originating notice of
motion for which leave has been granted seeks to
challenge the following:
... the decision of the Adjudicator, A. Micello dated February
27, 1992, such decision being communicated to the Applicant
on February 27, 1992, whereby the Adjudicator ordered the
Applicant deported from Canada, and to review and set aside
the decision of the said Adjudicator and Immigration and Ref
ugee Board Member, K. McMillan-Haver dated February 27,
1992, and communicated to the applicant on February 27,
1992, wherein the said Adjudicator and Board member deter
mined that the Applicant did not have a credible basis to his
claim to be a Convention Refugee.
Counsel for the respondent argues that this does
not constitute a challenge to the validity of the depor
tation order as such. He argues that the Okyere deci
sion requires a direct challenge to the validity of the
deportation order itself distinct and apart from a chal
lenge to the no credible basis decision. Such a chal
lenge, for example, would exist if the applicant were
arguing that the adjudicator had wrongfully exercised
(his or her) discretion in issuing a deportation order
rather than a departure notice. Departure notices are
issued when the adjudicator believes that the appli
cant is likely to leave Canada voluntarily (to return in
this case to El Salvador). It seems to me it puts the
applicant in an entirely untenable position to expect
him to argue that he can be expected to return volun
tarily to a country where he says he expects to be
killed or tortured and imprisoned. In any event, as I
understand it, the example given is only one type of
direct challenge that might be made to a deportation
order.
I accept counsel for the applicant's argument that
the kind of direct challenge, which counsel for the
respondent describes, is not necessary. In the present
case the deportation order flows from and is under
pinned by the decision finding no credible basis to
the applicant's claim for refugee status. If that deci
sion is invalid, as having been made without proper
regard to the evidence or as a result of some breach
of the rules of natural justice, then, the deportation
order is invalid as well. In my view, in such circum
stances, a challenge has been made to the validity of
the deportation order. It may be indirect, rather than
direct but, I do not understand the Federal Court of
Appeal's decision in the Okyere cases as requiring
more than the type of challenge to the deportation
order which exists in this case.
Counsel for the respondent cited in support of his
argument Lodge v. Minister of Employment and
Immigration, [1979] 1 F.C. 775 (C.A.) and Asumadu
v. Minister of Employment and Immigration (1988),
113 N.R. 150 (F.C.A.). In Lodge, the appellants
sought a stay of a deportation order pending disposi
tion of a complaint they had made under the Cana-
dian Human Rights Act [S.C. 1976-77, c. 33]. The
complaint alleged that the deportation proceedings in
question amounted to a discriminatory practice. In
Asumadu, the applicant applied for a stay of a depor
tation order pending completion of an inquiry as to
whether the applicant might obtain an exemption, on
humanitarian and compassionate grounds, from the
requirement of the Immigration Act, 1976 [S.C.
1976-77, c. 52], that a person must apply for landing
from outside Canada.
In the Lodge decision, the Court stated that the
principle to be applied was that applicable in decid
ing whether a permanent injunction should be
granted to restrain a Minister of the Crown from per
forming a statutory duty. It was noted that the Immi
gration Act imposed a statutory duty on the Minister
to execute a deportation order as soon as practicable
after it was issued and that as long as the validity of
that deportation order had not been successfully chal
lenged, the Court should not interfere to prevent its
execution. In the Asumadu case, the decisions were
brief but I understand them to be based on the finding
that as long as the validity of a deportation order is
not challenged, the Court should not prohibit its exe
cution.
The Lodge case was decided before the Federal
Court of Appeal decision in Toth v. Canada (Minister
of Employment and Immigration) (1988), 6 Imm.
L.R. (2d) 123 and before the addition of section 18.2
to the Federal Court Act. The Asumadu case was
decided the same day as Toth but by a different panel
of the Court. In Toth, it was held that the Court had
jurisdiction to grant a stay where such was deemed
appropriate to ensure that a process before the Court
was not rendered nugatory by execution of the order
being stayed. A stay of a deportation order was
granted pending disposition of an appeal of a deci
sion of the Immigration Appeal Board. Since that
time, the Trial Division's jurisdiction in this regard
has been made even clearer. Section 18.2 was added
to the Federal Court Act, by S.C. 1990, c. 8, s. 5:
18.2. On an application for judicial review, the Trial Divi
sion may make such interim orders as it considers appropriate
pending the final disposition of the application.
The only requirement under section 18.2 is that the
judge consider the interim order "appropriate". It
may very well be that in the absence of at least an
indirect attack on a deportation order, the Court
would not consider a stay order appropriate. But, it
seems clear that a direct challenge to the order, as
counsel for the respondent describes it, is not neces
sary. Indeed, as already indicated, I do not think a
"direct" challenge is what the Federal Court of
Appeal required in the Okyere decision either. The
Federal Court of Appeal of course did not refer to
section 18.2 because that provision relates only to the
Trial Division.
When then, will a stay order be "appropriate"?
Both counsel argued that the criteria set out in Toth
should be considered: did the applicant have an argu
able case; would the applicant suffer irreparable harm
if a stay was not granted; was the balance of conve
nience in the applicant's favour?
In this case, leave having been given to appeal the
no credible basis decision, counsel for the respondent
conceded that the applicant had demonstrated an
arguable case. He took the position however, that the
applicant had not demonstrated irreparable harm
because he had provided no objective evidence (i.e.,
no evidence other than his own testimony) that he
was likely to be badly treated on return to El Salva-
dor. The letter of a psychiatrist who described the
applicant as suffering from a post-traumatic stress
disorder syndrome and as exhibiting affects which
are a typical defence against chronic fear, it is
argued, should be ignored because it was written "to
support ... [the] efforts to help this young man from
El Salvador". I find it hard to accept those arguments.
I am prepared in this case to accept the applicant's
affidavit evidence and on that basis it is hard to reach
any other conclusion than that he will suffer irrepara
ble harm if he is returned to El Salvador.
In so far as balance of convenience is concerned,
counsel for the respondent relies on decisions such as
Manitoba (Attorney General) v. Metropolitan Stores
Ltd., [1987] 1 S.C.R. 110. In that case what was
sought was an injunction suspending the operation of
a law on the ground that it was unconstitutional. It
was held that there is a strong public interest in hav
ing the law enforced and in refusing to grant an
injunction preventing a public official from exercis
ing his authority under a statute in the absence of a
definitive decision declaring that statute ultra vires.
Beetz J. stated at page 135:
Whether or not they are ultimately held to be constitutional,
the law which litigants seek to suspend or from which they
seek to be exempted by way of interlocutory injunction relief
have been enacted by democratically—elected legislatures and
are generally passed for the common good .... It seems axio
matic that the granting of interlocutory injunction relief in
most suspension cases and, up to a point, as will be seen later,
in quite a few exemption cases, is susceptible temporarily to
frustrate the pursuit of the common good.
And at page 146, the Court concluded:
It has been seen from what proceeds that suspension cases
and exemption cases are governed by the same basic rule
according to which, in constitutional litigation, an interlocu
tory stay of proceedings ought not to be granted unless the
public interest is taken into consideration in the balance of
convenience and weighted together with the interest of private
litigants.
The reason why exemption cases are assimilated to suspen
sion cases is the precedential value and exemplary effect of
exemption cases. Depending on the nature of the cases, to
grant an exemption in the form of a stay to one litigant is often
to make it difficult to refuse the same remedy to other litigants
who find themselves in essentially the same situation, and to
risk provoking a cascade of stays and exemptions, the sum of
which make them tantamount to a suspension case.
I do not think the test set out in decisions such as
the Metropolitan Stores Ltd. case is relevant to the
present situation. In that case, the validity of one sec
tion of a statute was under attack. Thus, an interlocu
tory injunction order in favour of one litigant
impliedly would lead to similar orders respecting all
individuals covered by the allegedly unconstitutional
section of the statute. The section itself would in fact
be rendered inoperative (be totally suspended) pend
ing the determination of its validity.
In the present case the legislative provisions of the
statute are not challenged. One decision by an adjudi-
cative body operating under the statute with respect
to one specific individual is being challenged. Ren
dering an injunction (or stay order) in such a case
will not suspend the operation of any part of the leg
islation. Thus, the public interest considerations
expressed in Metropolitan Stores Ltd. are not in issue.
What is in issue, however, when considering bal
ance of convenience, is the extent to which the grant
ing of stays might become a practice which thwarts
the efficient operation of the immigration legislation.
It is well known that the present procedures were put
in place because a practice had grown up in which
many cases, totally devoid of merit, were initiated in
the court, indeed were clogging the court, for the sole
purpose of buying the appellants further time in
Canada. There is a public interest in having a system
which operates in an efficient, expeditious and fair
manner and which, to the greatest extent possible,
does not lend itself to abusive practices. This is the
public interest which in my view must be weighed
against the potential harm to the applicant if a stay is
not granted.
I am not convinced that granting stays in all cases
such as the present, where there is clearly an arguable
case and where the whole foundation of the appli
cant's claim is based on the proposition that irrepara
ble harm will occur to him if he is returned to the
country from which he came, would so undercut the
operation of the immigration system as to be detri
mental to the public interest which exists in seeing
that the system operates fairly and efficiently.
In this regard the situation may be quite different
from that which exists, for example, when applicants
seek humanitarian and compassionate reviews, espe
cially on the eve of the execution of a deportation
order and then argue that a stay should be granted
because of the uncompleted nature of that review.
This is the kind of situation in which there is poten
tial for creating a practice which undermines the
orderly operation of the legislative scheme.
In any event, it would not be appropriate to try to
canvas all situations in which the public interest in
maintaining a fair and effective system might out
weigh or dictate the refusal of stays. One significant
factor however would likely always be the degree of
delay which has occurred, if any, in prosecuting the
applicant's appeal.
If the applicant has known of the decision which
underlies the challenge to the deportation order (or
departure notice) for some time and has not sought
leave to commence a section 18 proceeding until the
very last moment, then, there is reason to assume that
the seeking of leave and the deportation order is pri
marily a "time-buying" manoeuvre. If all the relevant
material has been filed with respect to the leave
application and the date of deportation is known then
counsel for the applicant (or the applicant as the case
may be) should alert the Federal Court Registry so
that the file can be placed before a judge for disposi
tion, as soon as possible, so that the Court is not
faced with requests for stays on the eve of the execu
tion of a deportation order. In my view, the bringing
of a request for a stay at the very last minute is often
in itself reason to refuse the request.
In the present case, the applicant has demonstrated
an arguable case. The foundation of that case rests on
the proposition that he will suffer irreparable harm if
returned to El Salvador. There has been no delay in
challenging the decision in question or in seeking a
stay of the deportation order once leave was granted.
I am convinced that the balance of convenience lies
with the applicant. Any harm to the fair and orderly
operation of the immigration system if all applicants
in similar circumstances to this applicant had the
deportation orders stayed, will be outweighed by the
potential harm to the applicant.
For the reasons given an order staying the deporta
tion order issued.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.