Date: 20030401
Docket: IMM-6714-02
Neutral Citation: 2003 FCT 384
Montréal, Quebec, April 1, 2003
Present: The Honourable Mr. Justice Simon Noël
BETWEEN:
GEORGES ÉTIENNE
and
NATHALIE VAN DE PUTTE
and
XAVIER ÉTIENNE
and
GENEVIÈVE ÉTIENNE
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is a motion for a stay of execution of a removal order scheduled for April 14, 2003, issued against the applicants that was attached to an application for leave attacking the decision of Nicole Nappi, an immigration officer, dated December 17, 2002, who reviewed the application for a ministerial exemption on humanitarian grounds and refused the application.
[2] To assess the merit of the application for a stay, the Court must ask itself whether the judge-made criteria have been fulfilled:
- the existence of a serious issue;
- the existence of irreparable harm; and
- the assessment of the balance of convenience.
(See Toth v. M.E.I., 86 N.R. 302 (F.C.A.))
[3] Having heard from counsel and examined the record, I consider there are two serious issues raised by this litigation:
- Given the custom and tradition of holding interviews before finalizing decisions, were the applicants right to expect such an interview before the final decision is made?
- As required by subsection 25(1) of the Immigration and Refugee Protection Act, was consideration given to public interest during the analysis of the record and/or the final decision?
[4] Furthermore, there is irreparable economic harm since the applicant Georges Étienne is currently performing contracts worth several hundred thousand dollars. If the removal were to occur, it seems to me that the co-contractors would be in a precarious situation since the performance of the contracts would be jeopardized and they would be unable to be compensated owing to the expulsion of the applicant co-contractor.
[5] Considering the record as a whole, it is my opinion that the balance of convenience lies with the applicants. And it is in the respondent's interest that the hope of an interview, whether founded or not, be decided for the purpose of enhancing the procedure under the assessment system.
[6] The applicants asked that the affidavit of the Citizenship and Immigration admitting officer, Nicole Nappi, dated March 27, 2003, be struck from the Court record because it raised facts for which they have not had an opportunity to respond and it was impossible to examine her at such short notice.
[7] Such affidavits are common in response to applications for a stay of removal and it is often impossible for the Minister to prepare these affidavits and file them within a period that would allow an answer thereto and examination thereon.
[8] In view of the decision I have reached, I do not think it is in the interests of justice to allow the request.
ORDER
The motion for a stay is allowed until the application for judicial review is decided and the motion for withdrawal of the affidavit of Nicole Nappi, an immigration officer, dated March 27, 2003, is dismissed.
"Simon Noël"
Judge
Certified true translation
Suzanne Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20030401
Docket: IMM-6714-02
Between:
GEORGES ÉTIENNE
and
NATHALIE VAN DE PUTTE
and
XAVIER ÉTIENNE
and
GENEVIÈVE ÉTIENNE
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: IMM-6714-02
STYLE:
GEORGES ÉTIENNE
and
NATHALIE VAN DE PUTTE
and
XAVIER ÉTIENNE
and
GENEVIÈVE ÉTIENNE
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 31, 2003
REASONS FOR ORDER AND ORDER OF MR. JUSTICE SIMON NOËL
DATED: April 1, 2003
APPEARANCES:
Jean El Masri FOR THE APPLICANTS
Édith Savard FOR THE RESPONDENT
SOLICITORS OF RECORD:
Jean El Masri FOR THE APPLICANTS
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
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