Date: 20020517
Docket: IMM-1752-02 and IMM-2071-02
Neutral citation: 2002 FCT 578
BETWEEN:
KULDIP KAUR
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] These two applications were argued jointly. IMM-2071-02 was for an application to stay the removal order issued against the applicant and IMM-1752-02 was an application to stay the removal order pending a determination by this Court of the application for leave and judicial review, I would assume, of both the risk assessment and the outstanding humanitarian and compassionate grounds (H & C) application.
[2] The removal of this applicant is scheduled for May 20, 2002.
[3] The applicant is a 32 year old citizen of India who arrived in Canada on a visitor's visa on July 14, 1998. She applied for refugee status on July 27 of the same year.
[4] This applicant originally left India in 1990 moving to Figi where she married a citizen of that country. From this marriage a son was born; but because of a violent matrimonial relationship the applicant left Figi accompanied by her two year old son and returned to her parents' house in India in July of 1994. She remained there for three months and returned to Figi after a short two month stay in Australia. Upon returning to Figi in November 1994, she sought and obtained a divorce from her husband in January 1995.
[5] In February 1995 the applicant went to Australia and remained there until November of that year. When her visa expired she returned to Figi where she resided for two more years. In the meantime her son remained in India with her parents where he still resides. Some two and a half years later the applicant came to Canada. She has no further status in Figi.
[6] Upon arriving in Canada, Ms. Kaur claimed refugee status. The claim was entertained in June 1999 and a negative decision was rendered in March 2000. The Refugee Division determined that although divorced women were socially unaccepted in India this fact did not give rise to persecution. Leave to appeal for judicial review of this decision was denied.
[7] The applicant then sought a post-determination refugee claim. By decision dated February 27, 2001 the PDRCC determined that there was no risk to the applicant if she returned to Indian and she therefore was ordered to leave Canada before April 5, 2001.
[8] On May 7, 2002, Ms. Kaur's counsel filed an application pursuant to subsection 114(2) of the Immigration Act seeking landing from within Canada on humanitarian and compassionate grounds. This application remains outstanding.
[9] After her arrival to Canada she entered into a common law relationship in April 1999 with Kirpal Singh Mann. This gentleman was previously married in India and it is submitted that he is attempting to obtain a divorce from his previous marriage in order to marry this applicant.
[10] The common law husband is currently without status in Canada. He is a refused refugee claimant and, as well, his H & C application was denied. Judicial review of this application was argued before a Justice of this Court on April 24, 2002 and the decision is still pending.
[11] From this relationship a daughter was born on February 5, 2000.
[12] On July 17, 2001, as a result of the Minister proceeding with removal arrangements, a further risk assessment request was submitted by the applicant. However, on July 31, 2001, a post-claim determination officer determined that it was inappropriate. Thereafter, counsel for the applicant sought reconsideration of the refusal of request for a pre-removal risk assessment.
[13] In response, a further detailed pre-removal risk assessment was compiled, taking into account the fact that the applicant would be returning to India with a Canadian born daughter. Again it was determined that there was no objective identifiable risk to their lives if they were removed.
[14] After reviewing the material on file and having given consideration to the submissions made by the parties at the hearing, I am not prepared to grant a stay of the removal order issued against the applicant. Ms. Kaur has not met the tri-partite test of demonstrating a serious issue, irreparable harm and that the balance of convenience lies in her favour.
[15] First, the only possible serious issue here is the risk to the applicant should she be removed. However, this risk has ben assessed by the CRDD during the applicant's refugee claim, by an immigration officer during the applicant's PDRCC application, and by an officer doing a pre-removal risk assessment. It cannot seriously be argued therefore that she has not had sufficient risk assessments, and that the removals officer should have given her one more.
[16] Second, the removal of a parent, with or without children, does not amount to irreparable harm. If the applicant is removed from Canada she may decide that her daughter will accompany her, or she may decide that the child should remain here with her father or the extended family which she has in Canada. I am not persuaded that in the circumstances, either the applicant or her daughter will suffer irreparable harm in the limited time between now and when her leave application for judicial review is dealt with. Removal may cause some disruption to the family, but this does not constitute irreparable harm.
[17] Finally, the balance of convenience rests with the Minister in complying with the statutory obligations set out in the Immigration Act. I would also add that the fact that Gibson J. has not yet rendered his decision in the H & C application of Ms. Kaur's common law spouse has no relevance to the application now before me.
[18] For these reasons, the application for a stay of the removal order is dismissed.
JUDGE
OTTAWA, Ontario
May 17, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2071-02 and IMM-1752-02
STYLE OF CAUSE: KULDIP KAUR v. MCI
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MAY 13, 2002
REASONS FOR : THE HONOURABLE MR. JUSTICE ROULEAU
ORDER
DATED: MAY 17, 2002
APPEARANCES:
MS. BARBARA JACKMAN FOR APPLICANT
MR. DAVID TYNDALE FOR RESPONDENT
SOLICITORS OF RECORD:
JACKMAN, WALDMAN & ASSOCIATES FOR APPLICANT
TORONTO, ONTARIO
MR. MORRIS ROSENBERG FOR RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA