Date: 20010306
Docket: IMM-912-01
Citation: 2001 FCT 154
BETWEEN:
MUN SOOK KIM and
YOUNG HWA LEE
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondents
O=KEEFE J.
[1] This is a motion by the applicants for an order staying the operation of the removal order made against the applicants until such time as the application for leave and judicial review is dealt with.
[2] The applicants are citizens of the Republic of Korea. The applicant, Mun Sook Kim first came to Canada in December, 1995 on a visitor=s visa. After this applicant failed to have the visitor=s visa extended for a second time, she applied for Convention refugee status for herself and her daughter. That application was denied on August 14, 2000 and was not made the subject of a judicial review application until February, 2001.
[3] The applicant, Mun Sook Kim has married a Canadian citizen who has filed an application to sponsor his wife and the other applicant, her daughter. This application has not yet been dealt with and contains references to humanitarian and compassionate grounds.
[4] 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
[5] I am satisfied that the applicants have raised a serious issue in that it is obvious from reading the Board=s decision that it made an error with respect to the applicant, Mun Sook Kim=s evidence concerning the death of her mother. The error was in stating that according to the authorities, her mother was alive in 1990. A review of the documents shows that the reference was not to her mother. As well, I cannot tell whether the Board considered the AGender Guidelines issued by the Chairperson of the Immigration and Refugee Board@. These are serious issues to be tried.
Irreparable Harm
[6] If the Board erred with respect to the facts, and on this basis wrongfully concluded that her evidence with respect to her abuse was not credible (when in fact it may have been credible had the Board properly interpreted the facts), the applicants would then be sent back to face possible physical abuse. I find this would cause irreparable harm.
Balance of Convenience
[7] I am of the view that the balance of convenience favours the applicants. The applicant, Mun Sook Kim has been sponsored by her Canadian husband and if the application is successful, she will be able to remain in Canada. The applicant, Young Hwa Lee is a student. It would seem more reasonable to allow the applicants to stay in Canada until their application for judicial review is dealt with by the Court. I recognize that the Minister has a duty to remove persons who should not be in Canada as soon as possible, but I do not see that any excessive delay will be caused in this case.
[8] The application for a stay of the removal order is hereby granted until leave to commence a judicial review is refused or if leave to commence an application for judicial review is granted, until the judicial review is finally disposed of by the Court.
(Sgd.) AJohn A. O=Keefe@
Judge
March 6, 2001
Vancouver, British Columbia