Date: 20010426
Docket: IMM-6436-00
Neutral citation: 2001 FCT 389
BETWEEN:
NELLY VICHES, SHARON VILCHES and
AYLEEN VILCHES
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is a motion by the applicants, Nelly Viches and Ayleen Rivera seeking an order staying their removal from Canada until their application for judicial review is determined.
[2] The applicants have filed for judicial review of the decision of Immigration Official D. Shembri dated November 24, 2000 which denied the applicants' application on H & C grounds made pursuant to subsection 114(2) of the Immigration Act, R.S.C. 1985, c. I-2.
[3] The applicants are, for the purpose of this application, a mother (Nelly Viches) and her daughter, Ayleen Rivera, who are citizens of Chile.
[4] The applicants came to Canada on January 15, 1995. Their refugee claims were dismissed by the Refugee Division in 1998 and they also had their PDRCC application refused in 2000.
[5] The applicant, Nelly Viches alleges she is afraid that if she and her daughter are returned to Chile, they will suffer harm from her brother-in-law. She alleges in her affidavit sworn to on April 17, 2001 that she has been previously assaulted by her brother-in-law.
[6] One of Nelly Viches' daughters died in Chile and in 2001, another daughter died suddenly at the age of 25 years, leaving behind her three year old daughter and a husband. The applicant's, Nelly Viches' husband also died.
[7] Nelly Viches' medical report dated March 30, 2001 states that her health will be harmed if she is deported. Her mental health has been seriously affected by the sudden death of her daughter.
[8] Nelly Viches has also become very attached to her grandchild, Francesca since the death of her daughter. Her son-in-law, Francesca's father, states that he and Francesca could not survive without Nelly.
[9] Nelly Viches' daughter, Ayleen is in grade 9 and has attended school in Canada since grade 3. Her school year ends on or about June 28. If she has to leave school now without completing grade 9, she will be put behind at least two years.
[10] The officer who denied the H & C application, when dealing with the part of the applicants' solicitors' letter concerning the relationship between Nelly Viches and her granddaughter, stated ". . . It instead dwells on the relationship between Nelly and Francesca, which smacks of morbid opportunism on counsel's part".
Issue
[11] Should an order issue staying the removal of the applicants from Canada?
Analysis and Decision
[12] In order to grant a stay, I must be satisfied that the applicants have met the tri-partite test outlined in Toth v. Canada (Minister of Employment and Immigration) (1988), 6 Imm. L.R. (2d) 123 (F.C.A.). The applicants must meet all three parts of the tri-partite test. Summarized, these parts are:
1. Have the applicants demonstrated that they have a serious issue to be tried?
2. Have they demonstrated that they would suffer irreparable harm if the stay order was not granted?
3. Have they demonstrated that the balance of convenience considering the total situation of both parties favours the order being granted?
Serious Issue
[13] I am of the opinion that the applicants have raised a serious issue to be tried. That issue is whether the officer did a proper evaluation of the H & C application in light of the remarks made about part of the applicants' submissions, " . . . It instead dwells on the relationship between Nelly and Francesca, which smacks of morbid opportunism on counsel's part". This statement raises the issue as to whether or not there was a reasonable apprehension of bias or actual bias on the part of the officer. This is a serious issue to be tried.
Irreparable Harm
[14] I find that irreparable harm would result for the applicants in that the applicant's, Nelly Viches' mental health is extremely fragile and her mental health would deteriorate due to all of the stresses that have been placed on her. If removal caused additional stress, this would clearly cause irreparable harm to her according to her medical report and to her daughter as well.
Balance of Convenience
[15] The balance of convenience favours the applicants as no great delay will result for the respondent if removal is stayed pending the outcome of the judicial review application. As well, the applicant, Ayleen Rivera would be able to complete grade 9.
[16] The removal of the applicants, Nelly Viches and Ayleen Rivera is hereby stayed until leave for the application for judicial review is denied or if leave is granted, then until the application for judicial review is finally disposed of by the Courts.
ORDER
[17] IT IS ORDERED THAT the removal of the applicants, Nelly Viches and Ayleen Rivera is hereby stayed until leave for the application for judicial review is denied or if leave is granted, then until the application for judicial review is finally disposed of by the Courts.
"John A. O'Keefe"
J.F.C.C.
Toronto, Ontario
April 26, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-6436-00
STYLE OF CAUSE: NELLY VICHES, SHARON VILCHES and AYLEEN VILCHES
Applicants
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: MONDAY, APRIL 23, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: O'KEEFE J.
DATED: THURSDAY, APRIL 26, 2001
APPEARANCES BY: Mr. Michael Crane
For the Applicants
Mr. Ian Hicks
For the Respondent
SOLICITORS OF RECORD: Michael Crane
Barrister & Solicitor
200 - 166 Pearl Street
Toronto, Ontario
M5H 1L3
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010426
Docket: IMM-6436-00
Between:
NELLY VICHES, SHARON VILCHES and AYLEEN VILCHES
Applicants
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER