John v. Canada (Minister of Citizenship and Immigration), 2002 FCT 365

Date: 20020402

Docket: IMM-1341-02

Neutral citation: 2002 FCT 365

Ottawa, Ontario, this 2^nd day of April, 2002

PRESENT: THE HONOURABLE MR. JUSTICE BEAUDRY                              

BETWEEN:

                                                          DENISE VERONICA JOHN

and ALANA JOHN, by her Litigation Guardian,

DENISE VERONICA JOHN

                                                                                                                                                      Applicants

                                                                                 and

                                  MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

[1]                 These are the reasons for my order allowing the stay application of a removal order filed by Denise Veronica John. She asked this Court to stay the Minister's removal order, ordering that she be removed from Canada to her native St. Vincent on March 25, 2002. I allowed her motion for a stay of her removal order on March 24, 2002.

[2]                 The applicant came to Canada in June of 1992 on a visitor's visa. She gave birth to a daughter while in Canada on February 1, 1996. This child was born with congenital adrenal hyperplasia. In February 2000, the applicant filed an application for permanent residence from within Canada on humanitarian and compassionate grounds (H & C application) and that application was denied in September 2000. At the time of the applicant's H & C application, the daughter was four years old and still suffered from her affliction. Nevertheless, the applicant's H & C application was still denied.

[3]                 The applicant then applied for refugee status, but she failed to perfect it within the statutory time limitations and was deemed to have abandoned her refugee claim. The motion materials before me provide no indication as to what her status was in Canada between the expiration of her visitor's visa and her first H & C application in 2000.

[4]                 On December 3, 2001, the applicant met with an Immigration Expulsion Officer to arrange her imminent removal from Canada. In January 2002, Elvis Bristol, a permanent resident of Canada, filed a sponsorship application on her behalf as his common-law spouse. They have been together since October 2000. On February 5, 2002, the applicant and the expulsion officer met again. On March 12, 2002, the applicant was advised that her removal date was March 25, 2002. On March 21, 2002, the applicant's counsel sent a letter asking the removal date be deferred. On March 22, 2002, the expulsion officer advised the applicant that the removal date would not be deferred.

[5]                 On March 22, 2002, the applicant filed an application for leave and judicial review of the removal officer's decision not to defer the removal date. Also, on March 22, 2002, the applicant filed with this Court her application seeking an order to stay the removal until her judicial review had been heard. As stated above, I allowed her stay application.

[6]                 When the stay application and the underlying judicial review application seek the same remedy, i.e., a deferral of a removal order, the historical tri-partite test used for stay applications in Toth v. Canada (Minister of Employment and Immigration) (1988), 6 Imm. L.R. (2d) 123 (F.C.A.), was correctly modified by Pelletier J. (now J.A.) in Wang v. Canada (Minister of Citizenship and Immigration), [2001] 3 F.C. 682.

SERIOUS ISSUE

[7]                     In a case where the relief sought in the underlying judicial review is identical to the relief sought in the stay application, Pelletier J. stated in Wang, supra, that when deciding if there is a serious issue to be tried, it is not sufficient to just say that the application is not frivolous or vexatious, therefore satisfying the serious issue branch, but rather whether the applicant has a likelihood chance of success on the underlying judicial review application. Therefore, I must decide whether the applicant has a likelihood chance of success in her underlying judicial review application before I can grant her stay.

[8]                 The applicant states that even though her little girl's medical condition is improving and has stabilized and is currently controlled by medication, she fears that she might not be able to pay for her daughter's medication upon their return to St. Vincent. The applicant mentioned in her affidavit in paragraph 12 that she has no family remaining in St. Vincent, has nowhere to go and no one to assist her upon arrival. The applicant states that the removal officer, when deciding not to defer the removal of the applicant, should have considered the best interests of the applicant's daughter: see Baker v. Canada, [1999] 2 S.C.R. 817.

[9]                 I am not persuaded that the removal officer turned her attention to the best interests of the child when deciding not to defer the removal of the child's mother from Canada, especially in light of the daughter's medical condition.   

IRREPARABLE HARM

[10]            In light of the fact that the daughter suffers from a serious medical condition and if the medication cannot be obtained in St. Vincent would result in a deterioration of the daughter's health, I am satisfied that the applicant will experience irreparable harm if the medication is not available for her child.

BALANCE OF CONVENIENCE

[11]            Given my reasoning behind the first two issues, I find that the balance of convenience lies in favour of the applicant. As previously ordered, the stay will be granted.

       "Michel Beaudry"    

Judge