Date: 20050816
Docket: IMM-4520-05
Citation: 2005 FC 1107
OTTAWA, ONTARIO, THE 16th DAY OF AUGUST 2005
Present: THE HONOURABLE MR. JUSTICE LEMIEUX
BETWEEN:
CALIPH KAHN
Applicant
- and -
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
[1] Caliph Kahn (the "applicant") seeks a stay of the execution of his removal scheduled for August 20, 2005, pending a decision on his application for leave and judicial review and, if leave is granted, pending the determination of his judicial review application.
[2] In his leave application, Mr. Kahn, a citizen of India, seeks to set aside the July 14, 2005 decision of removal officer Sindi Pannu who refused to defer his removal pending a decision on his application for landing in Canada on humanitarian and compassionate grounds, an application purportedly filed on January 19, 2005.
BACKGROUND
[3] On July 19, 1997, Mr. Kahn entered Canada from the United States where he had resided since 1971 studying film making and then producing films.
[4] In May, 2000, he was convicted of leading a conspiracy in facilitating the importation into Canada of 327 kilograms of hash for which, after receiving credit of eight months pre-trial custody, he was sentenced to four years and four months in penitentiary.
[5] On February 19, 2001, a deportation order was issued with respect to him.
[6] In 1998, he met Celeste Thirlwell, then a medical student and a single mother with two daughters, Constance (2 years old) and Natasha (1 year old). That relationship developed into a common law partnership, still vital today, resulting in two more children (Sara born on February 9, 2001, and Dara born December 27, 2002). As at January 21, 2005, Dr. Celeste Thirlwell was in residency training in psychiatry at McMaster University in Hamilton and has three more years to complete it. She is commuting daily to Hamilton from Toronto with Mr. Kahn in charge of the day to day running of the household.
[7] On September 5, 2002, counsel for the applicant wrote to Citizenship and Immigration Canada ("CIC") in Vegreville, Alberta, enclosing an application labelled "in Canada Application for Permanent Resident Status" on the basis of Mr. Kahn being the common law partner of a Canadian citizen for which a $1525.00 fee was paid. The documentation also enclosed a sponsorship agreement.
[8] In that letter she stated Mr. Kahn was seeking a temporary residence permit and approval in principle for landing in Canada on humanitarian and compassionate grounds, pending landing in Canada under the sponsorship of his common law spouse. She indicated Mr. Kahn was inadmissible to Canada at the present time for serious criminality and that he was presently on day parole with full parole slated for November 3, 2001. She stated Mr. Kahn was ineligible for a pardon until September 2009 and would remain inadmissible until pardoned. As a result, Mr. Kahn was seeking a temporary residence permit to allow him to remain in Canada until such time as he could obtain a pardon and be processed for landing in Canada under his wife's sponsorship.
[9] On February 19, 2003, CIC Vegreville forwarded a letter to Dr. Thirlwell referring to her application "for permanent resident status under the Spouse or common law partner in Canada Class". CIC's letter advised her application was refused because Mr. Kahn did not have temporary resident status in Canada.
[10] When CIC's February 19, 2003 letter advising Celeste Thirlwell her sponsorship application was refused came to her attention, counsel for the applicant wrote on September 8, 2003, to the Manager, Immigration Case Processing Centre in Vegreville, pointing out Mr. Kahn had filed a humanitarian and compassionate application seeking a temporary resident's permit and approval in principle for landing on humanitarian and compassionate grounds and that she had not received any reply from CIC on that application. She wanted information on whether his application was being processed through Vegreville or whether it was being sent to a local office for continued processing. Various follow-ups were made.
[11] On January 31, 2005, counsel for the applicant wrote to CIC Vegreville stating that CIC had requested updated information and documentation with regard to Mr. Kahn's application for humanitarian and compassionate consideration. That information was enclosed. Also enclosed were updated applications for permanent residence from within Canada, supplementary information forms, authority to release information consents and an application for temporary resident permit.
[12] Enclosed in the documentation is a letter dated January 21, 2005, from Dr. Thirlwell to "Dear Immigration Officer" explaining the family's dependency on Mr. Kahn since she and the children were involved in the summer of 2004 in a near fatal car accident that left their eldest daughter, Constance, with an acquired brain injury requiring extensive rehabilitation, weekly speech therapy, physiotherapy and occupational therapy. She also explained the requirements of her residency program at McMaster University and that without his emotional and financial support, she would have to stop her studies.
[13] As I understand it, shortly after the accident, Mr. Kahn was called in to make removal arrangements and that removal was deferred for six months because of Constance's condition.
[14] On May 23, 2005, counsel for the applicant wrote to CIC Etobicoke indicating that Mr. Kahn's humanitarian and compassionate application had been transferred from CIC Vegreville to CIC Etobicoke for processing in February of 2005, an application which had originally been filed in September 2002. She stated the application should not be treated as a newly received application and should be brought forward for consideration on an expedited basis.
[15] In early June, 2005, Mr. Kahn was again called in to make removal arrangements. On June 8, 2005, counsel for the applicant wrote to Sindi Pannu, a removal officer, requesting his removal be deferred until his H & C application was determined. She provided documentation which showed that Mr. Kahn had taken over as the primary caregiver of the children, an assistance which had been integral to Constance's rehabilitation and in coordinating her multiple therapy and therapists' appointments.
[16] On July 8, 2005, counsel for the applicant received a letter from Sindi Pannu stating CIC had an obligation under section 48 of the Immigration and Refugee Protection Act to carry out removal orders as soon as reasonably practicable and that having considered the request for deferral, she did not feel the deferral of the execution of removal order was appropriate in the circumstances of this case.
[17] On July 14, 2005, Mr. Kahn attended an appointment with Sindi Pannu concerning removal instructions. Counsel for the applicant's paralegal also attended. She was asked to reconsider her decision not to defer but the request was denied.
[18] The respondent filed two affidavits in support of its position that no stay should be issued by this Court. There is the affidavit of Sindi Pannu and there is the affidavit of Tom Heinze, a paralegal assisting counsel for the respondent.
[19] In her affidavit, whose admissibility the applicant challenged, Sindi Pannu recites that on or about June 8, 2005, she received a request to defer Mr. Kahn's removal and that the reasons requested for deferral included were not limited to the applicant's outstanding H & C application and the best interest of the children in the care of Mr. Kahn. She states that in making her decision, she confirmed that the applicant's H & C application would not be decided for twelve to eighteen months, that the applicant was criminally inadmissible into Canada for serious criminality and not enough time had lapsed in order for him to apply for a pardon. In regard to the best interest of the children, she noted the applicant cares for the children, that Constance Thirlwell had been seriously injured in an accident in 2004 but her situation was no longer critical although she has ongoing treatment. She noted that Dr. Celeste Thirlwell had recovered to the point where she can care for the children and that the removal of the applicant would not leave the children without a parent able to care for them. She concluded by saying that in balancing all of the considerations, she came to the conclusion that deferral was not appropriate in this case.
[20] In his affidavit, Mr. Heinze deposes a number of documents including extracts from the Field Operating Support System ("FOSS"). One of the FOSS' recordings bears an entry dated March 12, 2003, indicating an Immigration Officer had called counsel for the applicant advising they did not have the record of the H & C application, that the lawyer said the covering letter indicated the application was submitted under H & C. The FOSS note records "advised lawyer application has to be under the appropriate form and instead we should have requested the correct application form and then processed the kit as a H & C". The FOSS has another recording under a February 4, 2005 entry which reads:
At the time of the application, September 2002, if a file had conflicting information and with the confusion due to the new legislation changes, we were contacting clients to ensure the correct application was submitted. In this case, the REP and client were requesting H & C consideration but because he was living common law submitted the spouse or common law partner application form. After talking to the lawyer, it is clear that the intent was to apply for H & C consideration which was in part because the client is living common law [...] Processing fees of $550.00 from the refused APR are being used for H & C application due to the fact that the previous application should not have been refused but instead we should have requested the correct application form and then processed the kit as a H & C [...]. [emphasis mine]
ANALYSIS
[21] I do not think the applicant's objection to Sindi Pannu's affidavit is sustainable. The affidavit is largely confirmatory of her notes to file.
[22] I find the applicant has made out the three-part test for the grant of a stay from the execution of his removal order.
[23] The applicant has made out a number of serious issues to be tried.
[24] First, one of the factors to be considered by the removal officer whether to differ or not its execution is a pending H & C application that has been brought in a timely manner (see Simoes v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 936. The first serious issue is whether Sindi Pannu erred in not recognizing the applicant had filed a H & C application in September of 2002 and, because of an administrative mistake, is still outstanding.
[25] The second serious issue is whether the removal's officer erred in misconstruing the evidence the applicant was the primary caregiver of the couple's four children and that Dr. Thirlwell was reasonably available to raise them if the applicant was removed.
[26] The third serious issue is whether the removal officer took an appropriate account of the best interest of the children.
[27] I am satisfied that irreparable harm has been made out. As counsel for the applicant submitted, harm to the family unit is an appropriate consideration. The leading case of Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.), was such a case. Here, the couple has been together for seven years now. The impact on Dr. Thirlwell's residency is obvious as is the impact of the removal of the family's primary caregiver.
[28] Given my findings of serious issue and irreparable harm, it follows that the balance of convenience favours the applicant.
ORDER
THIS COURT ORDERS that the execution of the applicant's removal from Canada is stayed pending a decision on his application for leave and judicial review and, if leave is granted, pending the determination of his judicial review application.
"François Lemieux"
J U D G E
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4520-05
STYLE OF CAUSE: CALIPH KAHN v. MINISTER OF PUBLIC
SAFETY AND EMERGENCY PREPAREDNESS
PLACE OF HEARING: TORONTO
DATE OF HEARING: AUGUST 8, 2005
REASONS FOR ORDER: LEMIEUX J.
DATED: AUGUST 16, 2005
APPEARANCES:
Barbara Jackman FOR APPLICANT
Janet Chisholm FOR RESPONDENT
SOLICITORS OF RECORD:
Barbara Jackman FOR APPLICANT
Barrister and Solicitor
Toronto, Ontario
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT
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