Federal Court Decisions

Date: 20020408

Docket: IMM-608-02

Neutral citation: 2002 FCT 380

Ottawa, Ontario, this 8th day of April, 2002

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                                         STALIN JAMES NARAYAN

MARGARET NARINE

SHELLY ANN NARAYAN

SHERRY ANN NARAYAN

SHELDON NARAYAN

SHANE NARAYAN

Applicants

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 This is a motion by the applicants for a stay of their removal to Grenada, pending the determination of their application for leave and for judicial review of the decision with respect to their application for an exemption from the landing requirement based on humanitarian and compassionate ("H & C") grounds. The applicants' removal is scheduled for May 1, 2002.

[2]                 The applicants are citizens of Grenada. The adult applicants came to Canada in 1989, the three younger children came in 1994 and the oldest sone came in 1995. The applicants made a refugee claim which failed, and have made earlier unsuccessful H & C applications.

[3]                 The applicant, Stalin James Narayan has been employed since he came to Canada, having been employed as a mechanic at the same firm for the past ten years.

[4]                 The applicant, Margaret Narine is currently employed in the hotel industry.

[5]                 The oldest son, Shane, has a Canadian born six month old child and lives in a common law relationship with the child's mother.

[6]                 The two daughters indicated that they had done all their high school in Canada and were now in their first year at York University and were doing well. If returned to Grenada, they could not continue university as the only university there is a medical school and they are not interested in studying medicine. They also stated they were well integrated into life in Canada and they have no contact with Grenada.

[7]                 The applicants contend that the visa officer had indicated that he was going to defer making his decision. The visa officer does not recall any mention of a deferral.

Issue

[8]                 Should an order issue staying the removal of the applicants?

Analysis and Decision

[9]                 It is now accepted that a removal officer has some discretion and may, in certain situations, stay the removal of the applicants (see Wang v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 295 (F.C.T.D.)).

[10]            In order to obtain a stay, the applicants must satisfy the requirements set out in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.) at page 305:

This Court, as well as other appellate courts have adopted the test for an interim injunction enunciated by the House of Lords in American Cyanamid Co. v. Ethicon Ltd. [1975] A.C. 396 [Footnote 3 appended to judgment]. As stated by Kerans J.A. in the Black case supra:

The tri-partite test of Cyanamid requires, for the granting of such an order, that the applicant demonstrate, firstly, that he has raised a serious issue to be tried; secondly, that he would suffer irreparable harm if no order was granted; and thirdly that the balance of convenience considering the total situation of both parties favors the order.

The applicants must meet all three branches of the tri-partite test.

[11]            Serious Issue

According to the evidence of Stalin James Narayan, the officer indicated to them that he was going to wait until a charge against one of the applicants was disposed of before rendering a decision on the H & C application and then without notice to the applicants, the officer rendered the unfavourable decision. The officer did not file his own affidavit but informed others, one of whom filed an affidavit which stated in part that he said he did not recall making a promise that he would defer his decision. The applicants state that had they known of the impending decision, they would have filed additional material. I am of the opinion that the question as to whether or not such a deferral was offered raises a serious issue.

[12]            Irreparable Harm

The adult applicants have been in Canada since 1989 and both are steadily employed. The children came to Canada in 1994 and 1995. Two of the daughters are currently in university and if returned to Granada, they could not complete their university studies as the only university there is a medical school. The daughters are not taking medical degrees. The family has no ties to Grenada. In my opinion, on the circumstances of this case, the applicants would suffer irreparable harm if returned to Grenada.

[13]            Balance of Convenience

The applicants do not pose a threat to the public. I am cognizant of the duty imposed on the Minister by the provisions of the Immigration Act, R.S.C. 1985, c. I-2, however I believe that the duty can be carried out when the leave or judicial review proceedings are completed if the applicants are unsuccessful. The balance of convenience favours the applicants.

[14]            The removal (deportation) order issued against the applicants is hereby stayed, until the determination of the leave and the application for judicial review is disposed of by the Court.

ORDER

[15]            IT IS ORDERED that the removal (deportation) order issued against the applicants is hereby stayed, until the determination of the leave and the application for judicial review is disposed of by the Court.

                                                         "John A. O'Keefe"             

                                                                            J.F.C.C.                       

Ottawa, Ontario

April 8, 2002