Date: 19981027
Docket: IMM-5365-98
BETWEEN:
NARUNZ ABRAMOV and
LADA ABRAMOV
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
EVANS J.:
[1] This is a motion brought by the applicants, Narunz Abramov ("the principal applicant"), and her six year old daughter, Lada Abramov ("the minor applicant"), for an order staying their deportation to Israel on October 29, 1998. The applicants are citizens of Israel.
[2] The applicants have filed an application for leave to commence an application for judicial review pursuant to section 82.1 of the Immigration Act in which they request that a decision by an immigration officer, dated September 2, 1998, that they were not eligible for membership in the Post-Determination Refugee Claimants in Canada Class ("PDRCC") be set aside.
[3] The applicants came to Canada in December 1995 and made Convention refugee claims in January 1996 on the ground that the state of Israel had failed to protect them from the harassment and discrimination to which they had been subject because they were from the former Soviet Union and, since Lada had been born out of wedlock, her mother was regarded as a prostitute. The applicants went to Israel in June 1993 to escape anti-semitism in the Republic of Dagestan.
[4] The Refugee Division dismissed their claims in a decision dated June 24, 1997 having found that:
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There is no credible evidence before us that, if the principal applicant had taken the appropriate steps by complaining to the authorities in respect of the incidents which she alleges caused her to have a well-founded fear of persecution and, by following through on those complaints, the State would have been unable to protect them. |
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The applicants' application for leave to commence a judicial review proceeding of this decision was dismissed.
[5] The applicants were found to be ineligible for the PDRCC Class on the ground that they had not submitted their application within the 15 days from the date that they were notified of the Refugee Division's determination, as required by the Immigration Regulations, section 11.4(2)(b).
[6] In her affidavit the principal applicant stated that she submitted her application "within a week" of receiving the Refugee Division's negative decision on July 8, 1997, and sent written submissions in support of her application by registered mail on July 23, 1997. In an affidavit filed on behalf of the respondent it is stated that a search of the department's records revealed that the applicants submitted their PDRCC application on July 23, 1997. Although counsel for the respondent did not provide a post-marked envelope, she did submit a copy of the PDRCC application form submitted by the applicant, which was dated July 19, 1997. As counsel for the applicants conceded, this shows that the principal applicant's statement in her affidavit that she submitted her PDRCC application "within a week" of receiving the Refugee Division's decision was wrong. "A week" from July 8 can be no later than July 15.
[7] It was agreed by counsel that the application could have been mailed no later than July 19 if it was to meet the statutory time registrations as implemented by the respondent, that is, 15 days from the date indicated on the decision of the Refugee Division, plus 7 days allowed for mailing.
[8] Counsel for the applicants, Mr. Cohen, indicated he was seeking leave to apply for judicial review of the refusal to determine the applicants' PDRCC application on the ground that the officer had erred in finding that the application was made too late. His submission is that, in the absence of the post-marked envelope containing the application, the fact that her application was dated July 19, 1997, the last possible date for applying for a PDRCC review, is evidence that she mailed it in time.
[9] In this motion for a stay, the applicants must establish that the leave application raises a serious question, that the applicants' removal to Israel will cause irreparable harm, and that the balance of convenience favours maintaining the status quo until the judicial review proceeding has been determined: Toth v. Canada (Minister of Citizenship and Immigration) (1988) 80 N.R. 302 (F.C.A.). In order to succeed, applicants must satisfy the Court of each of these elements. I am prepared to assume for the purpose of this hearing that the Court has jurisdiction to order a stay, even though the applicants' leave application, which does not challenge the validity of the deportation order, has not yet been perfected.
[10] I was not satisfied that the applicants had established that their leave application raised a serious question. The date of July 19, 1997, which appears on the PDRCC application form contradicts the principal applicant's affidavit that she mailed it no later than July 15. The fact that, if the form had been mailed on July 19, it would have been in time, is insufficient to indicate that it was indeed mailed on the day. In any event, given the evidence of the respondent's records, namely that the PDRCC application was submitted on July 23, 1997, it was not unreasonable for the PDRCC officer to conclude that it was submitted outside the statutory limitation period. It is, of course, unfortunate that counsel for respondent, Ms. Logsetty, was unable to provide a copy of the post-mark which would have put the matter beyond dispute, one way or the other.
[11] Even if I am wrong to conclude that there is no serious question, I would dismiss the motion on the ground that the applicants have not demonstrated that their removal to Israel would cause irreparable harm. I should note at this point that, contrary to Mr. Cohen's submission, a finding that there is a serious question that a person has been erroneously held to be ineligible for a PDRCC review does not in itself qualify the applicant for a stay. He was able to find no statutory provision or policy statement to this effect, and while the Court may often conclude that a person may suffer irreparable harm if returned without the benefit of a risk assessment, this will not necessarily by the case, as it is not here.
[12] The principal applicant's husband, who is also a citizen of Israel, is a permanent resident in Canada; they and Lada have been a family unit for two years. The couple are expecting their first child next year. Deportation of family members will often cause distress and significant disruption to the lives of those concerned. And in some situations, the distress and disruption may be sufficiently serious as to constitute "irreparable harm": Casiano v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1043 (F.C.T.D.); Calabrese v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 723 (F.C.T.D.). However, decisions on this issue are inevitably fact-driven, and the facts in this case do not satisfy the requisite standard.
[13] First, the harassment and discrimination in Israel that the principal applicant alleged that she had experienced were not life-threatening, nor did they deprive her of her liberty in any of the most obvious ways. Even if she were exposed to similar conduct on her return to Israel pending the disposition of the judicial review proceeding, I do not believe that she would thereby sustain irreparable harm.
[14] More serious, in my view, is the harm that the minor applicant, Lada, might suffer if she were returned to Israel with her mother; in particular, losing the security that she has attained through day care and starting her first year of school in Canada. There is evidence that Lada is overcoming the difficulties that she had when she first came to Canada, and that it would be deleterious for her if she were removed from her friends and her school. Again, I do not deny that this would be a significant disruption, but given the fact that Lada is at the beginning of only her first year of school, the evidence does not allow me to conclude that, in this respect, her potentially temporary removal to Israel would inflict "irreparable harm".
[15] Counsel also relied heavily on the harm that would result from Lada's forced separation from her mother's husband; the evidence is that Lada believes that he is her father and that they share a strong father-daughter relationship. It is relevant here to note that, since the principal applicant's husband is an Israeli citizen, he would be able to accompany them to Israel if he chose, although, given that other members of his family to whom he is close are in Canada, I can understand that this would not be an easy decision for him to make. However, the fact that his wife is pregnant with their child may result in his deciding to join his wife and Lada pending the resolution of the applicants' immigration difficulties.
[16] Given this conclusion, I need not consider the "balance of convenience" requirement. I therefore dismiss the motion for a stay of the applicants' removal to Israel on October 29, 1998. However, in view of the sympathetic features of this case, including the imminent submission of a section 114(2) application for leave to remain in Canada on humanitarian and compassionate grounds, based on the sponsorship of the principal applicant by her husband, I hope that the respondent and her officials will consider very carefully whether the public interest really requires that the applicants be removed to Israel this week.
ORDER:
This motion for an order staying the applicants' deportation to Israel on October 29, 1998 is hereby dismissed.
"John M. Evans"
Judge
Toronto, Ontario
October 27, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-5365-98
| STYLE OF CAUSE: NARUNZ ABRAMOV |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: MONDAY, OCTOBER 26, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER AND ORDER BY: EVANS J.
| DATED: TUESDAY, OCTOBER 27, 1998 |
APPEARANCES:
Mr. Neil Cohen
For the Applicants
Ms. Neeta Logsetty
For the Respondent
SOLICITORS OF RECORD: Neil Cohen
| 2 College Street, Suite 115 |
For the Applicants
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19981027
Docket: IMM-5365-98
Between:
Applicants
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
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