Date: 19980504
Docket: IMM-1680-98
BETWEEN:
NICOLE MAHALIA JOHN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
RICHARD J.:
[1] This is an application for an order staying the removal of the applicant from Canada.
[2] The applicant did not depart from Canada in accordance with the terms of her departure order dated February 3, 1998, and the order thus became a deemed deportation order on March 5, 1998. The applicant was detained on March 31, 1998, by immigration officials to arrange her removal from Canada. On May 1, 1998, she was informed, by an expulsion officer, that she was scheduled to be removed to Trinidad at 7:55 p.m. on May 4, 1998. The application for a stay was brought on May 1, 1998.
[3] The applicant was born on December 28, 1977, in Trinidad, she is a single mother with three children, who are Canadian citizens, between the ages of one to five. She is the sole care provider and source of financial support for the three children.
[4] On April 14, 1998, the applicant filed an application for leave and judicial review from a negative Humanitarian and Compassionate (H & C) decision which the application states was made on February 3, 1998, and which the supporting affidavit claims was made on December 29, 1997. A new H & C application was made on March 26, 1998. The respondent, in its affidavit, claims that no H & C decision was made on February 3, 1998, and it is common ground that no decision has been made on the H & C application made on March 26, 1998. The applicant did not file the H & C decision on which she is relying.
[5] At this stage, I must assume that an H & C decision has been made as recited in the application for leave and in the applicant's supporting affidavit but that it was not made on February 3, 1998. It will be for the judge called upon to decide the leave application to determine whether or not such a decision was made and, if so, whether leave should be granted.
[6] On that basis, I am prepared to accept that the applicant has demonstrated a serious issue to be tried for the purpose of this motion.
[7] With respect to irreparable harm, the applicant claims that she will be precluded from perfecting her application for leave which was filed on April 18, 1998. It is my understanding that the applicant will rely on the Convention on the Rights of the Child and the Guidelines governing subsection 114(2) of the Immigration Act. The underlying facts are contained in the supporting affidavit on this motion.
[8] The applicant also relies on her economic circumstances and her separation from other family members in Canada. Under current jurisprudence, this does not constitute irreparable harm. I understand that the applicant has elected to take her children with her. Her new H & C application can be processed from abroad.
[9] With respect to the balance of convenience, the applicant has resided in Canada continuously since 1986. In the respondent's material, there are claims that the applicant did not comply with Immigration directions in the past. Section 48 of the Act provides that a removal order shall be executed as soon as reasonably practical.
[10] Accordingly, the motion for a stay is dismissed.
__________________________
Judge
Ottawa, Ontario
May 4, 1998
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