Date: 20040318
Docket: IMM-1981-04
Citation: 2004 FC 419
Vancouver, British Columbia, Thursday, the 18th day of March, 2004
Present: THE HONOURABLE MR. JUSTICE O'KEEFE
BETWEEN:
GURDEEP SINGH and
RAMANDEEP KAUR SINGH
Applicants
- and -
THE SOLICITOR GENERAL
OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is a motion by the Applicants for an order staying the removal orders issued against them. The Applicants are scheduled for removal on March 30, 2004.
[2] The Applicants are citizens of India. The Applicant Gurdeep Singh arrived in Canada in November 1998.
[3] Gurdeep Singh made an application for Convention refugee status which was denied and his application for leave for judicial review was denied.
[4] Ramandeep Kaur Grewal made her application for permanent residence in India and indicated that her husband from Canada was sponsoring her application. Ms. Grewal was landed in Canada on November 29, 1997, as a permanent resident. Her husband was, in fact, deceased when she made her application. As a result she was ordered deported from Canada and her appeals were unsuccessful.
[5] The Applicants were married on December 12, 1998, and have two children, Armaan Singh Brar ("Armaan") born October 1, 2003, and Naivan Singh Brar born on February 14, 2000.
[6] The Applicants submitted an inland application for permanent residence on Humanitarian and Compassionate grounds on December 5, 2003. The decision in this application is still pending.
[7] In March 2001, the Applicant Gurdeep Singh made an application under the Post Determination Refugee Claimants in Canada (PDRCC). Gurdeep Singh's PDRCC application was transferred to be assessed under the Pre-Removal Risk Assessment (PRRA) program.
[8] The Applicants submitted a PRRA application in November 2003 which was denied.
[9] The Applicants' youngest child is suffering from a medical condition which was described by Dr. Randhawa as follows:
I am the medical practitioner for Armaan Singh Brar who is under my professional care since his birth on October 1, 2003. This child was delivered under compromised medical conditions. There was severe intra-uterine growth retardation and severe oligohydramnios. Furthermore, during labour mom suffered a severe vasovagal reaction resulting in severe hypotension. This translated into severe fetal bradycardia (slowing of the heart rate). At birth fetal apgar score was rather poor at 5 and 8.
I have been monitoring this child frequently for generalized and rather unspecific irritability. This clinical monitoring should continue on an ongoing basis and for an indefinite period of time. During the recent past a consultation was requested from a pediatrician. His findings and recommendations can be made available to you for your inspection, at a later date. The specialist is Dr. Sorial his address 2660 James St. Abbortsford, BC and phone number is (604) 853-8912.
[10] Dr. Randhawa also stated in relation to the youngest child:
It is my opinion that this child would suffer if required to travel internationally for any length of time due to his medical condition. Also, I am familiar with the medical services that are generally available in India and I do not believe that this child could receive adequate medical care in India for the medical condition that has been described above.
Analysis and Decision
[11] It is now accepted that an 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] F.C.J. No. 295 (F.C.T.D.)).
[12] In order to obtain a stay, an applicant must satisfy the requirements set out in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.) at page 305:
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 [Footnote 3 appended to judgment]. 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.
[13] The Applicants must meet all three branches of the tri-partite test.
Serious Issue
[14] The Applicants have raised a serious issue which is whether or not the best interests of the youngest child have been properly considered.
Irreparable Harm
[15] I am of the view that irreparable harm would result if the order was not granted in that the youngest child needs medical care that his doctor states is not available in India. As well, his doctor states the child would suffer due to his medical condition if required to travel internationally for any period of time. Because of this, irreparable harm would be suffered by the other members of the family.
Balance of Convenience
[16] The balance of convenience favours the Applicants. They are co-operating with the authorities. The Applicants pose no risk to the public. The Applicant Gurdeep Singh is currently employed. The Respondent can remove the Applicants if their application is not successful.
[17] As to the H & C application being returned, I am satisfied that the Applicants had made an H & C application and intended there to be an H & C application, and there is presently an H & C application.
[18] Because of my findings on this motion, I need not deal with the Charter issue with respect to the youngest child's medical information.
[19] The Applicants' motion for a stay of the removal orders will be granted.
[20] The style of cause will be amended by removing "The Minister of Citizenship and Immigration" as a respondent and adding "The Solicitor General of Canada" as the Respondent.
ORDER
IT IS ORDERED that the removal orders issued with respect to the Applicants are stayed until leave in the application for leave for judicial review is denied or, if leave is granted, that the removal orders are stayed until the application for judicial review is dealt with by the Court.
IT IS FURTHER ORDERED that the style of cause is amended by removing "The Minister of Citizenship and Immigration" as a respondent and adding "The Solicitor General of Canada" as the Respondent.
(Sgd.) "John A. O'Keefe"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1981-04
STYLE OF CAUSE: GURDEEP SINGH et al.
Applicants
- and -
THE SOLICITOR GENERAL OF CANADA
Respondent
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: March 8, 2004
REASONS FOR ORDER AND ORDER: O'KEEFE J.
DATED: March 18, 2004
APPEARANCES:
Mr. Peter D. Larlee for Applicants
Ms. Helen Park for Respondent
SOLICITORS OF RECORD:
Larlee & Associates for Applicants
Vancouver, BC
Morris Rosenberg for Respondent
Deputy Attorney General of Canada
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