Date: 20030730
Docket: IMM-5601-03
Citation: 2003 FC 934
Toronto, Ontario, July 30th, 2003
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
KOSANKA MOMCILOVIC
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Kosanka Momcilovic takes care of a 13 year-old girl named Nadja, whose mother died of cancer nine years ago. Ms. Momcilovic applied for a humanitarian and compassionate exemption from the usual requirement that applications for permanent residence be made from outside Canada. An immigration official turned down her request. She is seeking judicial review of that decision and now asks the Court to stay her removal from Canada in the meantime.
[2] I find that Ms. Momcilovic has satisfied the three branches of the test for a stay: she raises a serious issue for judicial review; she points to the irreparable harm to Nadja if she were to be removed; and, she shows that the balance of convenience lies with allowing her to stay.
1. Serious issue
[3] The officer who reviewed Ms. Momcilovic's application agreed that it would be difficult to find a replacement for her as a care-giver. However, she felt that the family could find one through a commercial agency. In my view, Ms. Momcilovic has raised a serious issue: whether the officer's consideration of the best interests of the child was adequate in all the circumstances.
2. Irreparable harm
[4] Ms. Momcilovic says that she has a very strong bond with Nadja, almost as if they were mother and child. This is confirmed by Nadja's father and by Nadja herself. A psychologist concludes that Nadja would suffer "tremendous hardship" if Ms. Momcilovic had to leave, especially at the vulnerable age of 13. In my view, this evidence shows irreparable harm.
3. Balance of convenience
[5] In light of the above, the balance of convenience lies in allowing Ms. Momcilovic to remain in Canada while she pursues her legal remedies.
[6] Accordingly, this motion is allowed.
ORDER
THIS COURT ORDERS that:
1. The motion is allowed.
2. The order requiring the applicant's removal on August 6, 2003 is stayed until her application for leave for judicial review is disposed of, and if leave is granted, until the judicial review proceedings have concluded.
"James W. O'Reilly"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5601-03
STYLE OF CAUSE: KOSANKA MOMCILOVIC
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JULY 28, 2003
REASONS FOR ORDER
AND ORDER : THE HONOURABLE MR. JUSTICE O'REILLY
DATED: JULY 30, 2003
APPEARANCES: Mr. Lorne Waldman
For the Applicant
Ms. Matina Karvellas
For Respondent
SOLICITORS OF RECORD: Lorne Waldman
Barrister & Solicitor
Toronto, Ontario
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For Respondent
FEDERAL COURT
Date: 20030730
Docket: IMM-5601-03
BETWEEN:
KOSANKA MOMCILOVIC
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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