Date:
20060719
Docket:
IMM-3564-06
Citation:
2006 FC 899
Montréal,
Quebec, July 19, 2006
Present:
The Honourable Mr. Justice Lemieux
BETWEEN:
IMED
ABDERRAHMA KAWECH
Applicant
and
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND
ORDER
[1]
This is an
application to the stay a removal order made for Friday, July 21, 2006.
[2]
This
application to stay is annexed to an application for leave and for judicial
review of a decision of Citizenship and Immigration Canada (CIC) dated October 11, 2005, dismissing his request, dated
September 8, 2004, for exemption from the permanent resident visa requirement
on the basis of humanitarian and compassionate considerations. In his
application, he had named Myriane Cholette, a Canadian citizen, as his spouse.
[3]
The
decision was not given to the applicant until June 21, 2006, when he reported to CIC and
was advised that he had to leave Canada
one month later. This decision casts doubt on whether the couple is living
together.
[4]
The impugned
decision must be considered in the context of the February 18, 2005
announcement by the Minister of CIC that the majority of spouses and common‑law
partners of citizens and permanent residents of Canada may, regardless of their status, remain
in Canada while their application for
immigration is being considered.
[5]
The
important events in the case of the applicant, who is a citizen of Tunisia, are as follows:
(a)
he arrived in Canada on August 9,
2000; one year later, he made a claim for refugee protection, but the claim was
rejected on May 14, 2002;
(b)
his application for a pre-removal risk assessment was rejected on February 21,
2004, and his application for judicial review of that decision was dismissed
by Mr. Justice Teitelbaum on October 14, 2005;
(c)
on March 12, 2005, CIC advised the applicant that his
request for an exemption had been forwarded to CIC Montréal;
(d)
on April 19, 2005, the applicant, accompanied by counsel, showed the
removal officer that he had a reservation for a departure on June 28,
2005;
(e)
on June 1, 2005, he obtained an administrative stay granted by the Canada
Border Services Agency, valid to October 14,
2005;
(f)
on July 5, 2005, CIC sent the applicant a letter advising him that his request
for an exemption would be assessed under the policy on partners if a sponsorship
undertaking was filed within 30 days, which was done on July 22,
2005;
(g)
in accordance with the public policy considerations established under
subsection 25(1) of the Immigration and Refugee Protection Act,
Mr. Kawech’s application was processed according to the rules of the spouse
or common‑law partner in Canada class, and he had to meet the Quebec
requirements concerning sponsorship;
(h)
after one or two delays, on June 15,
2006, the Quebec department of immigration and cultural communities (MICCQ)
advised Ms. Cholette that her sponsorship undertaking application had been
approved;
(i)
on June 15, 2006, MICCQ sent Mr. Kawech a certificate of selection,
advising him however that the issue of this certificate did not mean a
permanent resident visa would also be issued;
(j)
on that same day, MICCQ advised CIC Montréal that it had accepted Ms. Cholette’s
sponsorship undertaking application and had issued a certificate of selection
to Mr. Kawech.
[6]
After having heard the parties, I indicted to counsel that a stay should
be granted because Mr. Kawech had satisfied me there were serious
questions, that he would suffer irreparable harm and that the balance of
convenience was in his favour. However, I strongly suggested to the parties that
they clear up the matter of the couple’s cohabitation.
[7]
Concerning the matter of a serious question, the Supreme Court of Canada
in RJR‑MacDonald Inc. v. Canada (A G.), [1994]
1 S.C.R. 311, made the following ruling: “Once satisfied that the application is neither vexatious
nor frivolous, the motions judge should proceed to consider the second and
third tests, even if of the opinion that the plaintiff is unlikely to succeed
at trial. A prolonged examination of the merits is generally neither necessary
nor desirable”.
[8]
In my opinion, the main serious question arises from the fact that the
negative decision rendered on the request for an exemption was served after CIC
knew or should have known that the application for sponsorship had been
approved by MICCQ. In the circumstances of this case, was the negative decision
obsolete or moot?
[9]
Another serious question is whether the officer who decided to refuse the
exemption for humanitarian and compassionate considerations unfairly denied the
applicant the benefit of the application of the Minister’s policy or,
alternatively, acted contrary to the principles of procedural fairness by casting
doubt on whether the applicant and Ms. Cholette lived together without
investigating this matter during an interview.
[10]
Irreparable harm results from the fact that, if Mr. Kawech were to
leave the country, he would lose the right to invoke the policy of the Minister
of CIC of February 18, 2005, which does not require that he show the
existence of unusual, undeserved or disproportionate hardship to succeed in obtaining
an exemption for humanitarian and compassionate considerations (see Cecilia
v. Canada, [2005] 2 F.C.R. 483).
[11]
Having shown one or two serious questions and irreparable harm, the
balance of convenience is in the applicant’s favour.
ORDER
THE COURT ORDERS a stay of the removal order
until final judgment is rendered on the application for leave to commence an
application for judicial review and on the application for judicial review
following that leave.
“François Lemieux”
Certified true translation
Michael Palles
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