Date: 20050628
Docket: IMM-3211-05
Citation: 2005 FC 909
OTTAWA, Ontario, this 28th day of June, 2005
PRESENT: The Honourable Mr. Justice Teitelbaum
BETWEEN:
GURDEEP SINGH, and RAMANDEEP KAUR SINGH
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
TEITELBAUM J.
[1] This is a straightforward application for stay of a removal order filed by the applicants Gurdeep Singh and Ramandeep Kaur Singh, but with a "twist"
[2] The "twist" being the fact that because of the length of time it took to process all of the proceedings commenced by the applicants, Mrs. Ramandeep Kaur Singh gave birth to two children in Canada, who are Canadien citizens, the youngest being approximately 2 years old is ill.
[3] The applicants are subject to a removal order wherein they were informed that their removal from Canada was scheduled to take place on June 21, 2005.
[4] The applicants requested that their removal be deferred until an unspecified time in the future because of a medical condition in relation to their youngest son, Armaan Brar. This request was denied.
[5] On May 11, 2005, the applicants applied for leave and judicial review of that decision.
[6] As I have stated, the applicants seek a stay of their removal from Canada until the outcome of the application for leave and judicial review is decided.
[7] For a history of the applicants' stay in Canada and the steps taken by them to remain in Canada, I invite the reader to read pages 2 to 11 of the respondents' Motion Record. It is very obvious that the applicants are in Canada through misrepresentations.
[8] I repeat, this application is for a stay of a removal order and not a judicial review of an H & C decision, which has been denied.
[9] After listening to counsel for the parties and taking into account all of the facts, I have come to the conclusion that the application for stay of the removal order must be dismissed.
[10] This court applies a three-part test to determine whether to stay the execution of a removal order. The test is conjunctive.
[11] The applicants have the onus to establish that their leave application raises a serious issue to be tried, that they will suffer irreparable harm unless the stay is granted and that the balance of convenience, in terms of which of the two parties will suffer the greater harm from the granting or refusal of a stay pending a decision on the merits, favours them (Toth v. Canada (M.E.I.) 1988, 86 N.R. 302 (F.C.A.)).
[12] I am satisfied that the applicants' second son is ill and, in all likelihood, that better medical treatment is available in Canada.
[13] The evidence that was before the removal's officer was that the child can fly to India and can receive treatment in that country.
[14] The fact that treatment may be expensive in India is not in itself irreparable harm. In addition there is no or little evidence that the cost of medical care for Armaan Brar is expensive.
[15] Furthermore, the fact that the applicants may decide not to take their Canadian born children with them and the family would be separated, is not, in itself, irreparable harm.
[16] In the case of Dung Tran v. M.C.I., IMM-1718-05, March 21, 2005, 2005 FC 384, Mr. Justice de Montigny states, with regard to the issue of children being separated:
"The Applicant has also argued that his removal will have serious repercussions for his family (wife and seven children) that will be left behind. Deplorable as it may be, this kind of hardship typically occasioned by removal cannot constitute irreparable harm for the purpose of the Toth triparte test, otherwise stays would have to be granted in most cases.
[17] The choice to leave the children or to take them is left to the applicants.
[18] I find it difficult to understand how two individuals who know, as the applicants clearly should have known, that they were in Canada illegally and could easily be ordered removed from Canada, marry, have children and then attempt to remain in Canada solely on the basis of the fact that they now have two Canadian children.
[19] It is truly unfortunate that one of the children is ill but the evidence is such that the ill child will be able to fly to India and obtain medical treatment there.
ORDER
The application for stay is denied.
"Max M. Teitelbaum"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3211-05
STYLE OF CAUSE: GURDEEP SINGH and RAMANDEEP KAUR SINGH
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: June 20, 2005
REASONS FOR ORDER: TEITELBAUM J.
DATED: June 28, 2005
APPEARANCES:
Mr. Martin Bauer FOR APPLICANTS
Mr. Scott Nesbitt FOR RESPONDENT
SOLICITORS OF RECORD:
Martin Bauer FOR APPLICANTS
Barrister and Solicitor
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT
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