Date: 20010529
Docket: IMM-2370-01
Neutral Citation: 2001 FCT 539
BETWEEN:
YOLANDE COMMISSIONG,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
[1] This was a motion brought by the applicant seeking an order granting a stay of the execution of the removal order issued on April 23, 2001, against the applicant, to report for removal from Canada on May 24, 2001.
[2] The applicant, a citizen of Grenada, has been living in Canada since 1987. She has two Canadian-born children. The eldest child is eight years old and currently completing her third grade schooling. The second child is an infant and a child of the applicant's recent marriage to a citizen of the United States.
[3] Since her arrival in Canada, the applicant has obtained a certificate in hairstyling, and has been employed in that profession to support her family. From her earnings, the applicant also supplements the pension received by her mother who resides in Grenada and is unable to work. The respondent's evidence shows that the applicant held an employment authorization only from 1989 to 1991.
[4] The respondent's evidence also shows that the applicant was within the refugee backlog process, but she failed to appear for her scheduled inquiry in February 1994. As a result, she was the subject of an immigration inquiry in March 1995, from which a deportation order was issued. Ms. Commissiong made application for landing on humanitarian and compassionate ("H & C") grounds on a previous occasion. This application was refused on April 28, 1995.
[5] On April 26, 2000, the applicant married James Harbert, a citizen of the United States and the father of the applicant's second child.
[6] On May 31, 2000, the applicant was summoned to an interview to arrange for her removal from Canada, but at that time she was pregnant and informed the responsible immigration officer that she was unable to travel. No removal arrangements were then made.
[7] On the advice of her former counsel, the applicant filed an application for landing from within Canada, based on H & C grounds, in late October or early November, 2000. A decision with respect to this application has yet to be rendered. The applicant's second child was born in Canada shortly after the October/November H & C application. On January 4, 2001, the applicant was again called for a pre-removal interview and was then told that removal would take place within a month. That was not accomplished because Ms. Commissiong did not have the required travel documents for her infant child. The necessary birth certificate for her second child was thereafter obtained by Immigration Canada on her behalf. The applicant now faces a removal order, issued on April 23, 2001 and received four days later, to report for removal on May 24, 2001.
[8] The evidence of the responsible removals officer is that
[t]he Applicant made no request for deferral of removal to CIC on the basis of the Applicant's pending h & c application. There has been no contact from the Applicant, either personally or through counsel, since the Applicant attended in January 2001.
[9] It is clear the applicant did not request a discretionary deferral of the removal order from the officer ultimately responsible for her removal, but the officer who dealt with her in January, 2001, recorded that Ms. Commissiong did report her H & C application and was advised that this had no effect upon her removal from Canada. In the circumstances, I infer that the applicant then requested implicitly that her removal be deferred until the H & C application was determined. No consideration of possible deferral was then given, or when travel arrangements were later made. Those arrangements were apparently made without any discussion of appropriate timing with the applicant. It is against this refusal to defer that the applicant has now filed an application for leave and for judicial review, which is the underlying application on which this stay is sought.
[10] The decision in Toth v. Canada (Minister of Employment and Immigration) (1988), 6 Imm. L.R. (2d) 123 (F.C.A.), delineates the tripartite test that must be satisfied before a stay may be granted. It requires that:
1. the applicant demonstrate a serious issue to be tried;
2. irreparable harm will be suffered if the stay is not granted and the serious issue is ultimately resolved in the applicant's favour; and,
3. on consideration of all the circumstances of both parties, the balance of convenience favours granting the stay.
Serious Issue
[11] I find a serious issue to be tried is established by the applicant's pending application for leave and judicial review. This issue is whether, in failing to consider deferral of the removal of the applicant, the removals officer erred by fettering her discretion or acted unfairly by arranging removal without considering deferral or reasonably appropriate timing for the applicant and her Canadian children. That issue, concerned with the alleged refusal of the officer to exercise her discretion, would effectively be rendered moot if the applicant has already been removed from Canada when the issue is to be determined.
Irreparable Harm
[12] I am satisfied that should the applicant be removed to Grenada on May 24, 2001, irreparable harm will be suffered by her elder child who, while she is not subject to removal by the Minister, will accompany the applicant if the latter is now removed. With more than one month remaining in the current school year, the child's schooling will be disrupted. Whether she will lose credit for the school year not yet completed is uncertain, but there is no uncertainty that her schooling will be affected adversely. In the circumstances, where that risk is unnecessary, it would constitute irreparable harm, in my opinion. If the elder child is permitted to finish her school year by staying removal of the applicant until after June 30, 2001, any irreparable harm from disruption of the child's schooling would disappear.
[13] Furthermore, the applicant's infant child, now apparently some six months of age, and the applicant's mother, who lives in Grenada on support of public welfare and from the applicant, are subject to irreparable harm if the applicant is left without an opportunity to seek replacement of her current earnings upon which all are dependent. That harm will result should the applicant not have reasonable time in which to try to arrange either for the establishment of herself and her children in Grenada, or for their establishment in the United States. The latter possibility, it is asserted, was initiated approximately one month ago by the applicant's husband.
[14] Early and unnecessary hardship constituting irreparable harm will result if the applicant and her children are now removed from Canada after less than four weeks notice, and the source of the applicant's livelihood is cut off without reasonable time to seek new resources for family support in a new setting. That harm to both her children and the applicant's mother is not established to last indefinitely. Postponement of removal of the applicant until after June 30, 2001, will ensure that irreparable harm from sudden disruption of the family, without reasonable opportunity to prepare for a major change, is avoided.
Balance of Convenience
[15] In finding, on the facts of this case, that the applicant has met the first two branches of the test in Toth, in my opinion the balance of convenience rests with the applicant and, in the result, a stay for a limited period is warranted. It may be that within that period a decision will be made on the applicant's outstanding H & C application.
Order
[16] The applicant's motion is granted in part. Removal of the applicant from Canada is stayed until after June 30, 2001.
(signed) W. Andrew MacKay
JUDGE
OTTAWA, Ontario
May 29, 2001