Kim v. Canada (Minister of Citizenship and Immigration), 2001 FCT 247

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2001 FCT 247

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Text of decision

Date: 20010327

Docket: IMM-875-01

Neutral Citation: 2001 FCT 247

Halifax, Nova Scotia, this 27th day of March, 2001

PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

MICHELLE MIN AH KIM

Applicant

- and -

THE MINISTER OF CITIZENSHIP & IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1] This is a motion by the applicant for an order granting a stay against the execution of a removal order issued against the applicant on February 12, 2001.

[2] The applicant arrived in Canada in 1995 with her parents, brother and sister. She is a citizen of Korea, who originally entered Canada as a visitor and then applied to become a permanent resident of Canada which application was denied. The applicant has filed various applications for review of decisions affecting her. The latest application for leave and for judicial review involves the refusal of her H & C application on February 7, 2001.

[3] When the applicant left Korea, she was not aware of any criminal charges to be laid or laid against her parents.

[4] The applicant came to Canada when she was 17 years of age and is currently a first year student at the University of Toronto, studying economy and commerce.

[5] If returned to Korea, the applicant states she would have to find a place to live and would not be able to go to university.

[6] In order to grant a stay, I must be satisfied that the applicant has met the tri-partite test outlined in Toth v. Canada (Minister of Employment and Immigration) (1988) 6 Imm. L.R. (2d) 123 (F.C.A.). The applicant must meet all three parts of the tri-partite test. Summarized, these tests are:

1. Has the applicant demonstrated that she has a serious issue to be tried?

2. Has she demonstrated that she would suffer irreparable harm if the stay order was not granted?

3. Has she demonstrated that the balance of convenience considering the total situation of both parties favours the order being granted?

Serious Issue

[7] The applicant raised two issues in addition to those raised by her parents. These two issues were:

4. Whether the immigration officer's decision is unreasonable because he failed to consider the applicant as an individual person in her own right, thereby failing entirely to address the existence of humanitarian factors in her case; and

5. Whether the immigration officer erred in law in not assessing the hardship that the applicant would face if returned to Korea.

I am of the opinion that both of these issues raise a serious issue to be tried. Although points concerning the applicant were addressed they may be part and parcel of the parents' assessment and in actuality, a separate analysis of the applicant's situation may not have been done.

Irreparable Harm

[8] The applicant, if removed, will lose her year at the University of Toronto. As well, if she is removed from Canada, she will be placed in a different educational environment. I am of the opinion that the loss of a year of university constitutes irreparable harm based on the facts of this case.

Balance of Convenience

[9] The balance of convenience favours the applicant. If she is unsuccessful in the judicial review of the refusal of her H & C application, she can then be removed from Canada. This will not cause excessive delay to the respondent in carrying out the mandates of section 48 of the Immigration Act.

[10] The applicant's motion is granted.

ORDER

[11] IT IS ORDERED that the removal order issued against the applicant is hereby stayed until her application for leave for judicial review is denied or if leave is granted for judicial review, then until the application for judicial review is finally disposed of by the Court.

"John A. O'Keefe"

J.F.C.C.

Halifax, Nova Scotia

March 27, 2001

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: IMM-875-01

STYLE OF CAUSE:MICHELLE MIN AH KIM

- and -

THE MINISTER OF CITIZENSHIP & IMMIGRATION

PLACE OF HEARING: TORONTO, ONTARIO

DATE OF HEARING: MONDAY, MARCH 19, 2001

REASONS FOR ORDER AND ORDER OF O'KEEFE J.

DATED: MARCH 27, 2001

APPEARANCES:

Ms. Barbara Jackman

FOR APPLICANT

Mr. Martin Anderson

FOR RESPONDENT

SOLICITORS OF RECORD:

Jackman, Waldman & Associates

281 Eglinton Avenue East

Toronto, Ontario M4P 1L3

FOR APPLICANT

Department of Justice

Ontario Regional Office

130 King Street West

Toronto, ON M5X 1K6