Date: 20021128
Docket: IMM-5819-02
Neutral citation: 2002 FCT 1242
Toronto, Ontario, Thursday, the 28th day of November, 2002
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
HARJIT SINGH
SATINDER KAUR
Applicants
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
[1] This is a motion by Harjit Singh and Satinder Kaur (the "applicants") for an order staying their deportation from Canada, which is scheduled to take place on December 3, 2002.
[2] The applicants arrived in Canada in 1988 and made Convention refugee claims which were denied.
[3] The applicants' three children were found to be Convention refugees.
[4] The applicants made a fourth Humanitarian and Compassionate ("H & C") application for which they were approved in principle in 1994. However, due to intervening criminal charges against Harjit Singh, neither applicant was granted landed status.
[5] The applicant, Harjit Singh, has not been convicted of any criminal charges in Canada as all of the charges laid against him have been stayed. No further charges have been laid against him in Canada.
[6] The applicant, Harjit Singh, is afraid to go back to India as a result of the torture he allegedly received there. He has no connections or contacts in India. All three of his children reside in Canada and are Convention refugees.
[7] In 2000, the applicant, Harjit Singh, was informed that his H & C application would be rejected because of an alleged criminal conviction in India, in 1996. The applicant, Satinder Kaur's H & C application was also rejected, apparently because of her spouse's alleged criminal conviction in India.
[8] The applicant, Harjit Singh, had a trial on relation to perjury charges after he testified at a bail hearing that he had not been out of Canada since 1988. Due to problems with the presentation of the evidence and the policeman from India being unable to identify him, the perjury charges were stayed.
[9] The applicants filed a further H & C application in June 2002, which is still under consideration.
[10] The applicant, Harjit Singh, has deposed that his spouse has suffered complete kidney failure. She requires dialysis three times per week. She is also diabetic. This has been confirmed by a physician and by the applicant, Satinder Kaur. The physician also stated travelling was not advisable at this point.
[11] The applicant, Satinder Kaur, also deposed that she needs the support of her spouse because of her medical condition.
[12] The evidence establishes that dialysis is available in India, but patients have to pay for the service. In the case of the applicant, Satinder Kaur, the cost would be $1,000 per treatment.
[13] In addition, the nearest treatment centre is approximately 450 kilometres away from the applicants' place of residence. Including travel costs, this would result in a cost of $4,000 per week for the applicant, Satinder Kaur's treatment.
[14] The applicant, Harjit Singh, states that he cannot pay for this treatment.
[15] Without the treatment, the applicant, Satinder Kaur, would die.
- Issue
- Should a stay of the applicants' deportation to India be granted?
- Analysis and Decision
[18] In order for me to grant a stay, the applicants 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:
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 (Compare: Apple Computer Inc. v. Minitronics of Canada et al., 8 C.P.R. (3d) 431. See also: Law Society of Alberta v. Black (1983), 69 A.R. 322; 8 D.L.R. (4th) 346 (Alta. C.A.), at 349 D.L.R.). As stated by Kerans J.A., in the Black case supra:
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, favours the order.
The applicants are required to meet all three branches of the tri-partite test.
- Serious Issue
- I am of the opinion that the applicants have raised serious issues to be tried. These issues include:
1. Would it be a breach of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, to send the female applicant back to India where she would die if she did not receive dialysis because of a lack of money to pay for the services?
2. Did the officer have power under sections 7 and 52 to disregard section 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, that precludes consideration based on lack of medical resources?
- Irreparable Harm
- I am of the opinion that irreparable harm exists. Irreparable harm would result for both applicants should Satinder Kaur die if she is sent back to India and is unable to access dialysis treatment because of a lack of resources.
- Balance of Convenience
[22] The motion for a stay is granted and the deportation (removal) of the applicants is stayed until their application for leave for judicial review is denied or if leave is granted, then until the application for judicial review is dealt with by the Court.
[23] The parties indicated that the motion record filed applied to both this file and Court File IMM-5823-02. If necessary, I retain jurisdiction to make any necessary order in this respect.
ORDER
IT IS ORDERED THAT:
The deportation (removal) of the applicants is stayed until their application for leave for judicial review is denied or if leave is granted, then until the application for judicial review is dealt with by the Court.
"John A. O'Keefe"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5819-02
STYLE OF CAUSE: HARJIT SINGH
SATINDER KAUR
Applicants
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
PLACE OF HEARING:TORONTO, ONTARIO
DATE OF HEARING: MONDAY, NOVEMBER 25, 2002
REASONS FOR ORDER
AND ORDER BY: O'KEEFE, J.
DATED: THURSDAY, NOVEMBER 28, 2002
APPEARANCES:
Mr. Lorne Waldman
For the Applicants
Ms. Deborah Drukarsh
For the Respondent
SOLICITORS OF RECORD:
Mr. Lorne Waldman
Waldman & Associates
Barristers & Solicitors
281 Eglinton Avenue East
Toronto, Ontario
M4P 1L3
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20021128
Docket: IMM-5819-02
BETWEEN:
HARJIT SINGH
SATINDER KAUR
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER