Bissessar v. Canada (Minister of Citizenship and Immigration), 2003 FCT 600

Date: 20030515

Docket: IMM-5376-02

Citation: 2003 FCT 600

BETWEEN:

                                                               ELLEEN BISSESSAR

                                                                                                                                                       Applicant

                                                                              - and -

                                THE MINISTER OF CITIZENSHIP & IMMIGRATION

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

[1]                 These are the reasons for an order previously granted by me which ordered "that the removal order issued against the applicant ordering her removal from Canada on Tuesday, November 19, 2002 is stayed until her application for judicial review has been finally determined."

[2]                 The applicant is a citizen of Trinidad and Tobago, who has resided in Canada since August 13, 1988.

[3]                 Two of the applicant's brothers, Richard and Vishnudath, were landed in Canada in 2001 and 1992 respectively.

[4]                 The applicant came to Canada with her youngest brother, Robert in 1988. Robert was landed in April 2001.

[5]                 The applicant's refugee claim was denied in approximately 1990. When she was advised in 1990 that she could file a humanitarian and compassionate ("H & C") grounds application, she hired counsel and believed this to have been done. However, in August 2002, when she was arrested by immigration authorities, she learned that the person she hired was not a lawyer and had not filed her H & C application. She filed an H & C application on September 15, 2002.

[6]                 In May 2002, the applicant's brother Vishnudath bought a house, which the applicant and her brother Robert moved into. She makes the mortgage payments.

[7]                 The applicant is self-supporting and has never relied on social assistance. She has $1,500 in an registered retirement savings plan, approximately $11,000 in savings, furniture and personal assets worth approximately $13,000 and jewellery valued at $2,000.

[8]                 The applicant has no criminal record.

[9]                 The applicant has upgraded her education and wishes to become an accountant.

[10]            Both of the applicant's parents are dead.

[11]            The applicant's brother Robert has an undisclosed illness, which effects him about one-third of the time. He cannot care for himself and he needs to be told what to do for himself, for example, to take a shower. The applicant takes him to medical appointments once a week. No other family member can care for him.

[12]            The applicant has filed income tax returns since she started working in 1989 and has always used her own social insurance number.

[13]            The applicant had filed earlier, unsuccessful H & C applications.

[14]            Issue

Should the removal of the applicant from Canada be stayed?

Analysis and Decision

[15]            It is now accepted that an expulsion officer has some discretion and may in certain circumstances, stay the removal of an applicant (see Wang v. Canada (Minister of Citizenship and Immigration), [2001] 3 F.C. 682 (T.D.)).

[16]            In order to obtain a stay, the applicant must satisfy the requirements set out in Toth v. Canada (Minister of Employment and Immigration) [1988] F.C.J. No. 587 (QL) (C.A.):

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. 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.

[17]            Serious Issue

What is the effect of section 233 of the Immigration and Refugee Protection Regulations, S.O.R./2002-227 with respect to an expulsion officer's discretion to stay a removal order?

[18]            Irreparable Harm

I am satisfied that the separation of the applicant from her brother, who she cares for and who is seriously ill and cannot care for himself, would cause irreparable harm to the applicant.

[19]            Balance of Convenience

The applicant does not present any risk to the public. The respondent, if the applicant is unsuccessful in her application, can still carry out the removal order. I am of the view that the balance of convenience favours the applicant.

[20]            The motion for a stay of the removal order is granted.

                                                         "John A. O'Keefe"             

                                                                            J.F.C.C.                      

Ottawa, Ontario

May 15, 2003

             FEDERAL COURT OF CANADA

                          TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:      IMM-5376-02

STYLE OF CAUSE:                           ELLEEN BISSESSAR

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

PLACE OF HEARING:                      Toronto, Ontario

DATE OF HEARING:                        Monday, November 18, 2003

REASONS FOR ORDER OF O'KEEFE J.

DATED:         Thursday, May 15, 2003

APPEARANCES:

Gregory James

FOR APPLICANT

Jillian Siskind

FOR RESPONDENT

SOLICITORS OF RECORD:

Mamann & Associates

74 Victoria Street

Suite 303

Toronto, Ontario

M5C 2A5

FOR APPLICANT

Morris Rosenberg, Q.C.

Deputy Attorney General of Canada

FOR RESPONDENT