Date: 20010321
Docket: IMM-1279-01
Neutral citation: 2001 FCT 213
BETWEEN:
MEENA BABOOLAL, SELWYN BABOOLAL
and LYSTRA BABOOLAL
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is a motion by the applicants for an order staying the implementation of the removal order issued against the applicants by M. Sudds on March 8, 2001 whereby the applicants were to be removed to Port of Spain, Trinidad on March 26, 2001.
[2] The applicant, Meena Baboolal's husband, who was a policeman in Trinidad, was murdered while on duty on April 1, 1996. After the death of her husband, she began receiving threats over the telephone from unknown callers. The first call concerned an offer of $750,000 to her in exchange for her action to persuade the police to commute the death sentence of one of her husband's murderers. When she did not accept the offer, she and her family started receiving death threats from unknown people. She moved from house to house, in fear, but would be found for more calls.
[3] Finally, unable to live in this state of fear, she took her family to Canada and she and her family were granted status as visitors. She made a Convention refugee claim but this was dismissed.
[4] The applicants have made an H & C application which has not yet been disposed of by the appropriate authority.
[5] The applicant, Meena Baboolal has supported her two children since coming to Canada.
[6] The applicants fear for their lives if returned to Trinidad.
Issue
[7] Should an order issue staying the removal order?
Analysis and Decision
[8] In order to grant a stay, I must be satisfied that the applicants have 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 applicants must meet all three parts of the tri-partite test. Summarized, these tests are:
1. Have the applicants demonstrated that they have a serious issue to be tried?
2. Have they demonstrated that they would suffer irreparable harm if the stay order was not granted?
3. Have they demonstrated that the balance of convenience considering the total situation of both parties favours the order being granted?
Serious Issue
[9] I am of the opinion that the applicants have raised a serious issue by the fact that they have H & C applications that have not been determined. It is not every case where an H & C application is outstanding that a serious issue is raised. In this case, the applicants have also filed a judicial review application against their PDRRC decision and are alleging that a statutory stay was created pursuant to subparagraph 49(1)(c)(i) of the Immigration Act. They also allege that they were denied procedural fairness because they were not allowed to review the officer's review before a final decision was made. For the purposes of this motion, I find that a serious issue has been raised.
Irreparable Harm
[10] I am of the view that should the applicants be sent back to Trinidad prior to the determination of their H & C application and their application for leave and for judicial review, irreparable harm could result as the evidence before me indicates that they were threatened and they fear for their lives.
Balance of Convenience
[11] In this case, the balance of convenience favours the applicants as they will be secure from threats until it is determined whether or not they can remain in Canada. A stay will not overly inconvenience the respondent. The applicants are law abiding people and should these claims fail, they will not be difficult to find.
[12] The removal order issued against the applicants by M. Sudds on March 8, 2001 is hereby stayed until the later of the dates on which the application for judicial review is finally dealt with or the date on which the H & C application is disposed of.
ORDER
[13] IT IS ORDERED THAT: the removal order issued against the applicants by M. Sudds on March 8, 2001 is hereby stayed until the later of the dates on which the application for judicial review is finally dealt with or the date on which the H & C application is disposed of.
"John A. O'Keefe"
J.F.C.C.
Toronto, Ontario
March 21, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1279-01
STYLE OF CAUSE: MEENA BABOOLAL, SELWYN BABOOLAL and LYSTRA BABOOLAL
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: MONDAY, MARCH 19, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: O'KEEFE J.
DATED: WEDNESDAY, MARCH 21, 2001
APPEARANCES BY: Mr. Munyonzwe Hamalengwa
For the Applicants
Ms. Amina Riaz
For the Respondent
SOLICITORS OF RECORD: Munyonzwe Hamalengwa
Barrister & Solicitor
900-45 Sheppard Avenue East
Toronto, Ontario
M2N 5W9
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010321
Docket: IMM-1279-01
BETWEEN:
MEENA BABOOLAL, SELWYN BABOOLAL and LYSTRA BABOOLAL
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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