Date: 20000329
Docket: IMM-697-00
BETWEEN:
FRANKIE ALEXANDER AGARD
and CAROL ANN AGARD
Applicants
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O"KEEFE J.
[1] This is an application by the applicants for an order staying the execution of a removal order issued against the applicants until such time as the respondent renders a decision on the s. 114(2) application to be filed by the applicants and or until such time as this Court finally disposes of the applicants application for leave and for judicial review.
[2] The applicants have been living in Canada since February 13, 1998. The family unit consists of the husband, wife and three children aged 14, 12 and 9 years of age.
[3] The husband and wife have approximately 145 relatives living in Canada.
[4] The applicants were held not to be Convention refugees by the Immigration and Refugee Board and received a negative PDRCC decision.
[5] Both the husband and the wife are employed in good positions in Canada.
[6] The children are all attending school in Canada.
[7] Issue - Should an order issue staying the removal of the applicants?
[8] The law is clear with respect to the granting of an interlocutory injunction staying the removal of the applicants. The tri-partite test for granting an interlocutory injunction was established by the Supreme Court of Canada in R.J.R. MacDonald Inc. v. Canada (Attorney General)1. The test is:
| (1) Is there a serious issue or question to be tried? |
| (2) Will irreparable harm occur to the plaintiffs if the stay is not granted? |
| (3) The balance of convenience in the sense - which party will suffer the greater harm from the granting or refusal of the interlocutory injunction? |
The law is also clear that the applicants have to meet all three parts of the test in order to obtain an injunction.
[9] A review of the filed material and a consideration of the arguments of counsel have persuaded me that the applicants have met all of the aspects of the tri-partite test.
[10] There is a serious issue or question to be tried. As a review of the decision of the Post Claim and Determination officers shows that in one part of his report he states in effect that no submissions were attached to the application and none were received after the submission of the application. Then in his analyses he states that he has "had the opportunity to read over the submission of the applicant. The Respondent at page 16 of its Motion Record states:
| 16. This Honourable Court has held that discretionary decisions of post claims determination officers are subject to judicial review if their discretion is exercised pursuant to "improper purposes, irrelevant considerations, with bad faith, or in a patently unreasonable manner". |
[11] I do not believe the PCDO Officer did a proper review of the applicants" application. In fact, from reading the report I would conclude that the review was carried out in a patently unreasonable manner in that the report appears to be inconsistent with respect to the submissions of the applicant. From the report, the Court can not determine what caused the PCDO to write as he did write. This decision has very serious consequences for the applicants and therefore it should appear to be carried out in a careful and proper manner.
[12] I also find that the applicants would suffer irrepearable harm if the interlocutory injunction was not granted. By way of example, the children would be taken from school in the middle of the term and the parents would lose good paying jobs. As well, the PCDO Officer"s report states: "...violence is on an increase in Guyana and that because of their affluent position in Guyana the Indo-Guyanese are victims."
[13] I find that the balance of convenience favours the applicants. If the injunction is granted the applicants would have to move from Canada to a country where they no longer have a home. The applicants have indicated that if they are not successful in their reviews they will leave Canada; thus the public interest is being protected.
[14] Accordingly, I would grant an order staying the execution of a removal order issued against the applicants until the later of such time as the respondent renders a decision on the s. 114(2) application filed or to be filed by the applicants or the final decision is rendered by the Court in the applicants" application for leave and for judicial review.
ORDER
[15] It is hereby ordered that the application for a stay of the execution of the removal order issued against the applicants be granted on the terms stated in paragraph 5 above.
[16] It is further ordered that the applications pursuant to s. 114(2) of the Immigration Act be filed no later than Thursday, April 6, 2000.
J.F.C.C.
Halifax, Nova Scotia
March 29, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: FRANKIE ALEXANDER AGARD and CAROL ANN AGARD |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| DATE OF HEARING: MONDAY, MARCH 27, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
REASONS FOR ORDER
DATED: WEDNESDAY, MARCH 29, 2000
APPEARANCES: Mr. Muneshwar Deopaul
For the Applicants
Ms. Susan Nucci
For the Respondent
SOLICITORS OF RECORD: Muneshwar Deopaul
| 6 Milvan Drive, Suite 101 |
Morris Rosenberg
| Deputy Attorney General of Canada |
For the Respondent
FEDERAL COURT OF CANADA
Date: 20000329
Docket: IMM-697-00
Between:
| FRANKIE ALEXANDER AGARD and |
Applicants
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
__________________
1 [1994] 1 S.C.R. 311.
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