Date: 20010430
Docket: IMM-1142-01
Neutral citation: 2001 FCT 415
BETWEEN:
KANG RONG LIU
Applicant
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is a motion by the Applicant for an order staying the deportation order issued against him on March 19, 2001 which scheduled his removal for May 1, 2001.
[2] The Applicant came to Canada in September 1973 with his wife and two children under the conditional entrepreneur category. His wife went back to Taiwan in 1996 and he is now divorced from his wife.
[3] His business closed and this is the reason for his deportation.
[4] Between September 1994 and June 1996 the Applicant attended school to improve his English skills and he received his Ontario Secondary School Diploma.
[5] The Applicant has two sons who he supports. The oldest son is in second year at the University of Toronto and the younger son will graduate from high school this year.
[6] The Applicant filed an H & C application on November 1, 2000 and a decision is expected on this application in January or February 2002.
[7] The Applicant states that his sons need his support both financially and emotionally and as they have no mother in Canada he is their only source of support.
Issue
[8] Should an order issue staying the Applicant's removal from Canada?
Analysis and Decision
[9] In order to grant a stay, I must be satisfied that the applicant has 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 applicant must meet all three parts of the tri-partite test. Summarized, these parts are:
1. Has the applicant demonstrated that he has a serious issue to be tried?
2. Has he demonstrated that he would suffer irreparable harm if the stay order was not granted?
3. Has he demonstrated that the balance of convenience considering the total situation of both parties favours the order being granted?
Serious Issue
[10] The Applicant has raised a serious issue and that issue is whether mandamus should issue to order that the H & C application, be completed in this case, prior to the Applicant being removed from Canada. I note that the Applicant has indicated that she may amend her application for judicial review to cover the orders that were issued.
Irreparable Harm
[11] The Applicant is the sole provider of financial and emotional support for his two sons who are in high school and university. There are no other family members in Canada. The Applicant has no home or employment in Taiwan. The sons have not seen their mother since 1995. I am satisfied that the Applicant would suffer irreparable harm if he was removed from Canada prior to his H & C application being determined. The irreparable harm would be the damage to his family unit during the currency of the school year.
Balance of Convenience
[12] In this case, the balance of convenience favours the Applicant as the stay would allow him to maintain an intact family unit until his H & C application is determined. The Respondent will not be seriously inconvenienced by an approximate 10 month delay.
[13] The removal of the Applicant is stayed until his Humanitarian and Compassionate application is decided.
ORDER
[14] IT IS ORDERED THAT the removal of the Applicant is stayed until his Humanitarian and Compassionate application is decided.
"John A. O'Keefe"
J.F.C.C.
Toronto, Ontario
April 30, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1142-01
STYLE OF CAUSE: KANG RONG LIU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: MONDAY, APRIL 30, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: O'KEEFE J.
DATED: MONDAY, APRIL 30, 2001
APPEARANCES BY: Ms. Nancy Lam
For the Applicant
Ms. Catherine Vasilaros
For the Respondent
SOLICITORS OF RECORD: Nancy Lam
Barrister & Solicitor
206 Bloor Street West
Suite 3
Toronto, Ontario
M5S 1T8
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010430
Docket: IMM-1142-01
Between:
KANG RONG LIU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER