Date: 20030527
Docket: IMM-3035-03
Citation: 2003 FCT 666
Toronto, Ontario, May 27th, 2003
Present: The Honourable Mr. Justice O'Keefe
BETWEEN:
MAGDOLNA SZEGEDI,
ISTVAN BOGDAN
Applicants
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is a motion by Istvan Bogdan (the "applicant") for an order staying his removal from Canada pursuant to a removal order dated May 13, 2003. The applicant is to be removed from Canada on May 29, 2003.
[2] The other applicant is Magdolna Szegedi, who is the wife of the applicant Istvan Bogdan.
Background
[3] The applicant entered Canada on January 11, 2001 and claimed refugee status. His Convention refugee application was determined to have been abandoned on November 27, 2001 and an unperfected application for leave challenging the negative decision of the Refugee Division was dismissed on May 1, 2002.
[4] The applicant and Magdolna Szegedi were married in March 2002. In September 2002, Magdolna Szegedi obtained an application form, completed the form and sent it to the respondent. She believed that she had sent an application to sponsor her husband on humanitarian and compassionate ("H & C") grounds, when in fact the form used was for an application to become a permanent resident under the spouse or common-law partner in Canada class. The applicant could not succeed in this category because he did not have temporary resident status in Canada.
[5] When the applicant, Magdolna Szegedi met with a lawyer in December 2002 concerning a pre-removal risk assessment ("PRRA") application, she informed the lawyer that she had sponsored her husband on H & C grounds from within Canada. The lawyer advised her that submissions should be made on the H & C application with respect to the bona fides of their marriage and the hardship that the male applicant would face if returned to his country.
[6] The lawyer was requested to make the submissions with respect to the H & C application. The submissions were mailed to the respondent by xpress post on December 20, 2002.
[7] The respondent states that it received the applicant's submissions to support an H & C application on January 20, 2003.
[8] On January 24, 2003, the male applicant's application for permanent residence was refused because he did not meet the definition of a member of the spouse or common-law partner in Canada class as he did not at any time have temporary residence status in Canada.
[9] The applicants were not aware that they had not sent the proper application form for sponsorship on H & C grounds until they received the January 24, 2003 refusal letter.
[10] The applicants' solicitor wrote to the respondent on a number of occasions requesting that the officer reconsider the male applicant's application as an H & C application in light of the new evidence. The replies to the first two requests were in the format of a standard letter and were the same with the exception of the dates of the letters between the parties. There was a further reply letter to the applicants on March 20, 2003, which was more detailed, but did not really deal with the request for reconsideration. The final three letters from the applicants' solicitor were not answered, except that on April 10, 2003, the applicants' counsel received a telephone call from an officer stating that no reconsideration of the decision as an H & C application based on the submissions of the applicants' counsel would take place.
[11] The applicant, Istvan Bogdan, has made an application for permanent residence on H & C grounds. This application was received by the respondent on February 4, 2003.
[12] Issue
Should an order issue granting a stay of the removal order be issued?
Analysis and Decision
[13] The respondent made two preliminary arguments:
1. Was the applicants' application for judicial review filed outside the allowable time?
2. Is Magdolna Szegedi a proper party to the application for judicial review?
[14] Was the applicants' application for judicial review filed outside the allowable time?
I note from the application that the decision complained about, was communicated to the applicants on April 10, 2003 and that the application for judicial review was filed on April 25, 2003. On the basis of the material before me, it would appear that this argument would not prevail.
[15] Is Magdolna Szegedi a proper party to the application for judicial review?
I am of the opinion that for the purposes of this motion I need not decide this question as there is no doubt that Istvan Bogdan is a proper party to contest the removal order and, as such, the motion can be dealt with on this basis.
[16] It is now accepted that an officer has some discretion and may, in certain circumstances, stay the removal of the applicant (see Wang v. Canada (Minister of Citizenship and Immigration), [2001] 3 F.C. 682 (T.D.)).
[17] 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 favours the order.
The applicant must meet all three branches of the test.
[18] Serious Issue
I am satisfied that the applicant, Istvan Bogdan, has raised serious issues. These issues include:
1. Was the officer under a duty to enquire whether the applicants were in fact making an H & C application after the officer received the H & C submissions from the applicants' counsel?
2. Can the officer reconsider the decision based on the new information?
[19] Irreparable Harm
The psychological assessment report of the applicants states, in part, as follows:
Conclusions
The three members of the Bogdan-Szegedy family are responsible personalities who together constitute a well functioning harmonious family with a life time commitment to each other and with mutual affective bonding between the members. They have changed and developed to the degree that they think in terms of their responsibilities to the family rather than pursuing their individual interests. Serving the family has become their life goal. Because of this thoroughly established functional unity, it would be a tragedy to separate them. According to my analysis and the test results, an enforced separation for even one or two years could, and likely would, harm the life of the family members, causing an irreparable damage to the three persons. The third member of the family is Robert Szegedi who is the son of Magdolna Szegedi and he has a good relationship with his step-father.
Based on the medical report, I am of the view that Istvan Bogdan would suffer irreparable harm if removed from Canada.
[20] Balance of Convenience
I am of the opinion that the balance of convenience favours the applicant, Istvan
Bogdan. He is no threat to the public and the respondent can carry out his removal if he is unsuccessful in his application.
[21] The removal order issued against the applicant, Istvan Bogdan, is hereby stayed until the application for judicial review is dealt with by the Court.
ORDER
THIS COURT ORDERS that the applicant, Istvan Bogdan's removal from Canada is stayed until his application for leave is denied or if leave is granted, then until the application for judicial review is dealt with by the Court.
"John A. O'Keefe"
J.F.C.C.
FEDERAL COURT OF CANADA
Trial Division
Names of Counsel and Solicitors of Record
DOCKET: IMM-3035-03
STYLE OF CAUSE: MAGDOLNA SZEGEDI
ISTVAN BOGDAN
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING:MONDAY, MAY 26, 2003
REASONS FOR ORDER
AND ORDER BY: O'KEEFE, J.
DATED: TUESDAY, MAY 27, 2003
APPEARANCES BY: Mr. Harvey Savage
For the Applicants
Mr. John Loncar
For the Respondent
SOLICITORS OF RECORD: Harvey Savage
Barrister and Solicitor
Toronto, Ontario
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030527
Docket: IMM-3035-03
BETWEEN:
MAGDOLNA SZEGEDI
ISTVAN BOGDAN
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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