Date: 20020408
Docket: IMM-5847-01
Neutral citation: 2002 FCT 388
BETWEEN:
LOVELL WILLIAMS
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER DATED MARCH 25, 2002
O'KEEFE J.
[1] This is a motion by the applicant for an order granting an interim stay of the applicant's removal from Canada to Grenada until such time as the herein application for leave and for judicial review can be heard and disposed of by the Court.
[2] The applicant is a citizen of Grenada, who was landed in Canada in about 1986. The applicant's mother and brother are Canadian citizens. The applicant's other brother is a landed immigrant in Canada.
[3] The applicant has not been back to Grenada since 1986 and has no connections there.
[4] Between 1996 and 2001, the applicant has been found guilty or pleaded guilty to a considerable number of criminal charges. His latest conviction was for the possession of a narcotic in October, 2001.
[5] The applicant was married on May 30, 2001.
[6] The applicant had been ordered deported from Canada on January 18, 2000. He appealed that order to the Appeal Division of the Immigration and Refugee Board.
[7] A notice to appear on April 14, 2000 to set a date for the hearing was sent by the Appeal Division, but the appeal was declared abandoned as the applicant did not appear. The applicant states in his affidavit that he did not receive the notice to appear. The Immigration and Refugee Board informed Karina Stepanov of the Department of Justice that their normal practice is to mail out a notice to appear to an applicant and if it is not returned to the Board undelivered, it is presumed to have been received. The notice to appear was not returned in the present case. Ms. Stepanov deposed to this fact in her affidavit.
[8] The applicant applied to have his appeal hearing reopened but this request was denied on December 7, 2001. The applicant filed an application for leave and judicial review with respect to this denial on December 20, 2001 and the matter is still pending.
[9] In May, 2001, the applicant and his wife, Karen Marks, who is a Canadian citizen, became the parents of a daughter.
[10] On March 13, 2002, the applicant received notice that he was to leave Canada on March 26, 2002 at 8:20 a.m.
Issue
[11] Should an order issue staying the removal of the applicant from Canada?
Analysis and Decision
[12] It is now accepted that a removal officer has some discretion and may, in certain situations, stay the removal of the applicant (see Wang v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 295 (F.C.T.D.)).
[13] In order to obtain a stay, the applicant must satisfy the requirements set out in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.) at page 305:
This Court, as well as other appellate courts have adopted the test for an interim injunction enunciated by the House of Lords in American Cyanamid Co. v. Ethicon Ltd. [1975] A.C. 396 [Footnote 3 appended to judgment]. As stated by Kerans J.A. in the Black case supra:
The tri-partite test of Cyanamid requires, for the granting of such an order, that the applicant demonstrate, firstly, that he has raised a serious issue to be tried; secondly, that he would suffer irreparable harm if no order was granted; and thirdly that the balance of convenience considering the total situation of both parties favors the order.
The applicant must meet all three branches of the tri-partite test.
[14] Serious Issue
I am satisfied that the applicant has raised a serious issue. That serious issue is whether or not the Appeal Division properly exercised its broad discretion pursuant to Rule 32(3) of the Immigration Appeal Division Rules when it considered the applicant's request to reopen his abandoned appeal. The appeal became abandoned when the applicant did not appear for his hearing as he stated that he did not receive notice of the hearing.
[15] Irreparable Harm
The applicant arrived in Canada in about 1986 at the age of about 8 or 9 years and has lived continuously in Canada. He has no one to return to in Grenada. The applicant and his wife have a Canadian born daughter who was born on May 13, 2001. In my opinion, based on the facts of this case, the applicant would suffer irreparable harm if he was to be removed to Grenada prior to the disposition of his application for leave and for judicial review.
[16] Balance of Convenience
Although the Minister has a duty to enforce the provisions of the Immigration Act, R.S.C. 1985, c. I-2, that duty can be enforced after the applicant's application for leave and for judicial review is dealt with if the applicant is unsuccessful. The balance of convenience favours the applicant.
[17] The motion for an order granting an interim stay of the applicant's removal from Canada to Grenada until such time as the herein application for leave and for judicial review can be heard and disposed of by the Court is hereby granted.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
April 8, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5847-01
STYLE OF CAUSE: Lovell Williams v. Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 25, 2002
REASONS FOR ORDER OF The Honourable Mr. Justice O'Keefe
DATED: April 8, 2002
APPEARANCES:
Mr. Michael Korman FOR APPLICANT
Mr. Jeremiah A. Eastman FOR RESPONDENT
SOLICITORS OF RECORD:
Otis & Korman FOR APPLICANT
Toronto, Ontario
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
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