Harper v. Canada ( Minister of Employment and Immigration )
93-T-41
Rothstein J.
4/3/93
10 pp.
Application to stay deportation order pending disposition of application for leave to appeal decision insufficient humanitarian and compassionate grounds to warrant positive recommendation pursuant to Immigration Act, s. 114(2) and that removal of applicant to take place although minor children not under order of removal -- Applicant coming to Canada to escape abusive husband -- Arriving alone, but children joining her over years -- Refugee claim found not to have credible basis -- Deportation order issued -- Government of Canada agreeing to pay for removal of applicant and entire family if requested -- Application dismissed -- As challenge to humanitarian and compassionate determination may be construed as indirect challenge to deportation order (Membreno-Garcia v. Canada (Minister of Employment and Immigration), [1992] 3 F.C. 306 (T.D.)), inappropriate to dismiss application based upon no direct challenge to deportation order -- Absence of evidence applicant victim of domestic violence if returns to Dominica -- While affidavit evidence admissible on stay application, affidavit herein given little weight as consisting of hearsay upon hearsay, some assertions relating to events that may have occurred or might occur in Dominica -- Application of criteria in Toth v. Canada (Minister of Employment and Immigration) (1988), 6 Imm. L.R. (2d) 123 (F.C.A.) -- Applicant establishing neither serious issue nor irreparable harm -- No issue of separation of parent and child since Minister offering to pay for passage of applicant's children to Dominica -- Question of whether children will apply to remain in Canada in own right on humanitarian and compassionate grounds and disposition of such applications remote and speculative -- Applicant's situation must be dealt with on own merits and not on possible future events -- Applicant also raising issue of whether Canada bound to recognize abuse of women and children as ground for implementing s. 114(2) -- While domestic violence and extent to which victims receive protection from appropriate authorities in countries of origin serious matter, must be evidence applicant victim of abuse and no protection afforded in country of origin -- Evidence not indicating Dominica country in which domestic violence condoned or where no recourse for victims of domestic violence -- Immigration Act, R.S.C., 1985, c. I-2, s. 114 -- Federal Court Rules, C.R.C., c. 663, R. 332(1) -- Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 12.