Date: 19990723
Docket: IMM-3554-99
Ottawa, Ontario, the 23rd day of July 1999
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
LIDIA BELKIN and SHIRLEY MARTIN JOHNSON
Applicants
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER and ORDER
(Delivered at the hearing by conference call held in
Ottawa, Ontario on Monday, July 19, 1999)
[1] At the end of the hearing of this motion by conference call, the Court allowed the stay application for reasons issued orally. The following are the reasons delivered which were revised to improve their readability and clarity.
[2] Lydia Belkin is of Russian origin but is a citizen of Israel. She arrived in Canada on March 12, 1996 and immediately claimed refugee status. The Convention Refugee Determination Division was not persuaded that she is truly a refugee and rejected her claim on February 11, 1999,1 adding that there was no credible basis for her claim. In the meantime, on January 4, 1998, Ms. Belkin married Shirley Martin Johnson, a 60 year-old black Canadian resident whom she had known since September 1997. The following month, she applied to the Minister of Immigration to be allowed to make her application for landing without leaving Canada because of humanitarian and compassionate considerations, as provided in subsection 114(2) of the Immigration Act. This application was followed by a long period of silence by the Department of Immigration which lasted until the month of May 1999. It was only then that Ms. Belkin was called to a meeting with an immigration officer.
[3] The officer informed Ms. Belkin that her application was not likely to be considered if she did not agree to have a date set for her removal to Israel. In light of the removal order against her which had been in effect since her claim for refugee status was rejected, Ms. Belkin did not feel she could refuse. The date was set for July 19. This interview was once again followed by a period of silence which lasted until July 14 when Ms. Belkin received a letter from the immigration officer. This letter, written on July 12, stated that there were insufficient humanitarian and compassionate considerations in her case to justify the Minister"s intervention. The letter indicated that Ms. Belkin should leave Canada on July 19 as scheduled. Did Ms. Belkin receive the benefit of procedural fairness under these circumstances? She does not believe she did.
[4] On July 19, she appealed the denial of her application, brought an application for leave to commence an application for judicial review of that decision and made this application for a stay of the removal order.
[5] The tests for intervention in stays are the same as those for injunctions, namely (a) a serious question to be tried, (b) the existence of irreparable harm if the stay is not granted, and (c) the balance of convenience which must favour the applicant.
[6] All of these elements are present in the case at bar. The serious question to be tried is related to the circumstances in which the exemption application was dealt with by the Department. There are clearly many humanitarian and compassionate considerations which appear relevant to the examination the Minister must conduct before deciding on the exemption sought by Ms. Belkin. Counsel for Ms. Belkin presented the following facts in her memorandum:
| [TRANSLATION] |
| - that Ms. Lydia Belkin has been in Quebec since March 12, 1996, or for more than three years, that she is established there and that she has integrated well into the community; |
| - that Ms. Belkin and Mr. Johnson have been together for almost two years and they form a loving and supportive family unit; they are both older adults who are slightly physically challenged, each does what the other cannot and they give each other mutual support; this marriage cannot be ignored as Mr. Johnson is a Canadian resident and has the right to live with his spouse; |
| - that Ms. Belkin has no family living outside Canada; in addition to her husband, her only son (she is a widow from her first marriage), Andre Belkin, is 36 years old and a Canadian resident living in Montréal, her daughter-in-law, Svetlana Belkin (39 years old) is also a Canadian resident and her grandchildren, Olga Belkin (12 years old) and Alexandre Belkin (16 years old) also live in Montréal; that for humanitarian considerations of family reunification, it is totally absurd that Ms. Belkin should go away to live alone at the age of 72; |
| - that as the applicants are elderly, any delay or long separation is prejudicial and would make their lives miserable and unbearable as they would be deprived of the love, affection and support they have found together, not knowing whether they will still be living in a year or two; they may not live to hear a positive answer; |
| - the letters written by several community agencies of the Cote-des-Neiges area, including one from the Project Genesis organization, which have known Mr. Johnson for a long time and have seen the couple on several occasions and noted that their relationship of mutual support has had a significant positive impact on Mr. Johnson"s condition, and one from Dr. Plourde at the C.L.S.C. Cotes-des-Neiges which explains how much help Mr. Johnson requires, as well as one from Dr. Svarc concerning the needs of Ms. Belkin; |
[7] A letter which simply states that there were insufficient humanitarian and compassionate considerations does not indicate which considerations were accepted. A person reading such a letter would not know how to challenge the merit of such an opinion. Did the Minister have regard to all of the facts? Would the Minister have given more weight to other facts, and if so, which ones?
[8] In Mavis Baker v. Minister of Citizenship and Immigration2 dated July 9, 1999, the Supreme Court of Canada thoroughly canvassed the requirements of the duty of procedural fairness. The Court noted that the requirements of the duty of procedural fairness depend on the circumstances in which the decision at issue is taken. Madame Justice L"Heureux-Dubé specifically stated that a written explanation is required in certain circumstances. Like Ms. Belkin, Mavis Baker applied for an exemption based on humanitarian and compassionate considerations which was also refused because these considerations were not sufficient. Madame Justice L"Heureux-Dubé stated the following:
| The profound importance of an H & C [humanitarian and compassionate] decision to those affected, as with those at issue in Orlowski, Cunningham, and Doody, militates in favour of a requirement that reasons be provided. It would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached. |
[9] What is true for Mavis Baker is also true for Ms. Belkin.
[10] It must be said that in the case of Mavis Baker, the Supreme Court decided that she was informed of the reasons for the decision when she received the immigration officer"s notes. By contrast, Ms. Belkin still does not know the reasons for the decision in her case. Therefore, the serious question to be tried is whether the lack of reasons vitiates the immigration officer"s decision.
[11] With respect to the issue of irreparable harm, the Minister claims that only the possibility of interference with Ms. Belkin"s bodily integrity constitutes irreparable harm. However, the judges of this Court have often found that there would be irreparable harm in circumstances where there was no issue of interference with bodily integrity.
[12] First, there is Toth v. M.E.I.,3 in which the Federal Court of Appeal found that the possibility of the failure of the family business headed by the appellant, which would lead to personal and economic problems for the latter"s family and unemployment for the employees of the business, constituted irreparable harm. In Calabrese v. M.C.I. ,4 Mr. Justice Gibson allowed a stay application in the case of a young man who was to have been returned to Italy, a country he had left as a child and who did not speak Italian. In Garcia v. M.C.I.,5 Mr. Justice Dubé held that there would be irreparable harm if a man whose state of health was fragile were returned to Nicaragua. Gibson J. allowed a stay application in the case of a criminal undergoing rehabilitation who would be deprived of the community resources on which he relied on the ground that the loss of these sources of support would constitute irreparable harm in his case.6 There are other similar examples.
[13] In the case at bar, Ms. Belkin is 72 years old and her husband is 60 years old. They both have health problems, but they compensate for each other"s impairments. Ms. Belkin"s entire family, her children and grandchildren, is in Canada. She has no family in Israel. If she were removed, she is likely to wait for a long time before being readmitted to Canada through sponsorship by her husband. However, considering their age and the state of their health, neither can afford to let time go by. In these particular circumstances, they would both suffer irreparable harm if they were to be forcibly separated for an indefinite period of time when the time they have left is running out. This finding is based on their age, physical disabilities, interdependence and the lack of equivalent support in either Canada or Israel. It must also be said that there was no suggestion on the record that their marriage was anything other than a true marriage entered into in good faith. If the Minister has any doubts about this, there is no evidence to support them.
[14] The issue of the balance of convenience is closely related to irreparable harm. In the instant case, the balance of convenience favours Ms. Belkin, notwithstanding the Minister"s interest in the execution of removal orders. In particular, the lateness of the announcement of the Minister"s decision concerning the date of the removal, which deprived Ms. Belkin of the opportunity to discover or challenge the reasons for the Minister"s decision in the time remaining, weighs heavily in Ms. Belkin"s favour. This is not because the Minister set a date for the removal, which she had the right to do unilaterally, but because the date was set as a condition precedent to the examination of Ms. Belkin"s application. It therefore seems reasonable to expect that there would be a decision in enough time to allow her to examine her situation. She was not given this period of time and should therefore not be the one to suffer the consequences.
ORDER
For these reasons, the Court:
| 1) grants the stay application, and |
| 2) orders a stay until there is a decision on the application for judicial review. |
J.D. Denis Pelletier
Judge
Certified true translation
M. Iveson
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-3554-99
| STYLE OF CAUSE: LIDIA BELKIN and SHIRLEY MARTIN JOHNSON v. MINISTER OF CITIZENSHIP AND IMMIGRATION |
PLACE OF HEARING: OTTAWA AND MONTREAL BY CONFERENCE CALL
DATE OF HEARING: JULY 19, 1999
REASONS FOR ORDER AND ORDER OF PELLETIER J.
DATED: JULY 23, 1999
APPEARANCES:
JEANNINE LANDRY FOR THE APPLICANT
SHERRY RAFAI FAR FOR THE RESPONDENT
SOLICITORS OF RECORD:
JEANNINE LANDRY FOR THE APPLICANT
MONTRÉAL, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
__________________1 The hearing was held on December 14, 1998.
2 1999 S.J.J. No. 39.
3 (1988), 86 N.R. 302 (F.C.A.).
4 (1996), 115 F.T.R. 213.
5 (1993), 65 F.T.R. 177.
6 Hogan v. M.C.I. (1996), 108 F.T.R. 143.