Date: 20020222
Docket: IMM-648-02
Neutral citation: 2002 FCT 196
BETWEEN:
NATALIA VOITSEKHOVSKY
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] This is a motion by Natalia Voitsekhovsky (applicant) for an order staying the removal of herself and her minor daughter, Katia, from Canada to Israel.
[2] The applicant first entered Canada in 1993. She claimed Convention refugee status but was declared not to be a Convention refugee. The applicant and her daughter left Canada on January 31, 1996.
[3] The applicant and her daughter returned to Canada in October 1998 and made a claim for refugee status which was denied.
[4] In August 2001 the applicant's Humanitarian & Compassionate application was rejected.
[5] The applicant filed a second Humanitarian & Compassionate application by December 24, 2001. This Humanitarian & Compassionate application is still outstanding.
[6] Between October 24, 2001 and February 14, 2002 the applicant had a number of meetings with immigration officers with respect to her removal.
[7] The removal of the applicant and her minor daughter to Israel is now scheduled to take place on February 25, 2002.
[8] Issue - Should an order issue granting a stay of the removal order?
[9] Analysis and Decision
[10] It is now accepted that a removal officer has some discretion and may in certain circumstances, stay the removal of the applicant (see Wang v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 295 (F.C.T.D.)).
[11] In order to obtain a stay, the applicant 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:
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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: |
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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 applicant must meet all 3 branches of the tri-partite test.
[12] Serious Issue
The applicant, her daughter, Ana, who is a Canadian citizen and the applicant's friend, Natalia Bogomolova, each submitted an affidavit in which they stated that an immigration officer encouraged the applicant to submit a second Humanitarian & Compassionate application. The immigration officer denies this but does state in her affidavit that she told the applicant "... if she wanted to she could hire a lawyer to submit another application but in the meantime removal arrangements would proceed."
[13] Both parties at the hearing of the motion, stated there may have been miscommunication between the immigration officer and the applicant.
[14] The applicant's daughter, Anna, stated in her affidavit that the immigration officer said "to hurry up with the application".
[15] The applicant believed that the second Humanitarian & Compassionate application would be dealt with prior to her removal.
[16] I am of the opinion that the determination of whether what happened between the applicant and the immigration officer gave the applicant a reasonable expectation that procedurally her Humanitarian & Compassionate application would be dealt with prior to her being removed raises a serious issue.
[17] Irreparable Harm
I have reviewed the immigration officer's Notes dated November 29, 2001 with respect to a conversation he had with the applicants' psychiatrist and I have reviewed the excerpts from the psychological report which was submitted along with the second Humanitarian & Compassionate application (paragraph 13 of applicant's memorandum of argument). It is obvious that the applicant's removal at the present time could cause a relapse of her medical problems.
[18] I am of the view based on these reports that, at the present time, the applicant would suffer irreparable harm if she was removed from Canada.
[19] Balance of Convenience
The applicant is under a removal order but she is not a threat to the public. There is no doubt that the Minister is under a duty to enforce the Act but that can still be done if the applicant is not successful. I find that the balance of convenience favours the applicant.
[20] The Removal Order issued against the applicant for herself and her minor child is hereby stayed until the application for leave is disposed of and if leave is granted then the Order is stayed until the application for judicial review of the removal order is dealt with.
ORDER
[21] It is ordered that the Removal Order issued against the applicant for herself and her minor child is hereby stayed until the application for leave is disposed of and if leave is granted then the Order is stayed until the application for judicial review of the removal order is dealt with.
(Sgd.) "John A. O'Keefe" Judge
Vancouver, British Columbia
February 22, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-648-02
STYLE OF CAUSE: Natalia Voitsekhovsky v. Minister of Citizenship and Immigration
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: February 21, 2002
REASONS FOR ORDER OF THE COURT BY: O'Keefe J.
DATED: February 22, 2002
APPEARANCES:
Martin J. Bauer FOR APPLICANT
Kim Shane FOR RESPONDENT
SOLICITORS OF RECORD:
Hobson & Company FOR APPLICANT
Vancouver, British Columbia
Deputy Attorney General of Canada FOR RESPONDENT
Department of Justice
Vancouver, British Columbia