Date: 20000707
Docket: IMM-2773-00
Between:
MONIJA KATUN,
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER
(rendered in Toronto, Ontario)
Muldoon, J.
(orally)
THE COURT:
I cannot say that this is an easy case to decide and I will tell you why.
I have listened to both counsel with great care and Ms. Mitchell, I wouldn't want to appear to be patronizing but I think you did a valiant job and I must say there were times when I was absolutely convinced and swept away by your arguments. But one thing keeps nagging me and that is this : that Parliament has said there can be an application on humanitarian and compassionate grounds and I know the meaning of those words. I think that knowing the meaning of those words and applying them, I have to grant the application.
I am dismayed that there is all this negligence and error in the application. I am commenting now on the application historically, not Mr. Barnwell on what you have... your part in it, because I think your part has been quite competent. I am happy to say that, and that is what has made it difficult. Competent counsel do not make the judge's job easier at all and I hope that neither of you will consider me to be patronizing when I say that because I am not intending to be.
But I think that humanitarian and compassionate grounds have yet to be fully explored in this case. I look at the grandchildren, I look at the role of the applicant, even if she is confused about her own identity and who is her husband and what her age is. I don't think her grandchildren care much about that. I think that having read the Baker case thoroughly, from top to bottom, having muttered at one point, "Here is another soft hearted decision by the Supreme Court of Canada"; and then having reversed that opinion, and having considered it further, I intend to abide by it.
I am concerned that we must apply the proper standards which Parliament directs us to apply, and we do that not where it appears that the person is not worthy of consideration, not where it appears that this is a bad person. This is, rather, a quintessential grandmother. We all know that grandmothers are never bad and her grandchildren depend upon her, and they make her happy and she makes them happy. Now, that attribute... making someone happy, may not be a good ground, at least from the point of view of the expulsions officer; but it says something about humanity and compassion, and I think this case is rich with humanity and the need for compassion, despite the failures on the part of the applicant and those who have been supporting her to make a good case for her. I think that they have made a good case in terms of humanity and compassion.
So, it is the Court's decision that the execution of any departure order is to be stayed, in this case, until there has been a definitive decision. And by a definitive decision, I mean one rendered with time to bring a judicial review application after it is officially decided, but not further, until there has been a definitive decision on the humanitarian and compassionate application.
I add this, however, and the Minister's representatives are at liberty to come to the Court if it appears that the applicant is dawdling, delaying, not pressing forward with her application for humanitarian and compassionate review. If there is any sign of that, I have no hesitation in saying that it will simply be dismissed out of hand. If the Minister's representatives can convince me that she is not sincerely processing her application for humanitarian and compassionate review, then it will be dismissed. It will be dismissed by ,e or one of my colleagues.
I think as well, that after what she has said about being divorced from her husband, it is too late to change now. If she turns up with that husband, she is going to be in big trouble. I can't make her resort to her proper age, but I can make her resort to her proper marital status as she has compellingly said it is: nothing; divorced.
I don't want to see her in big trouble, but she would certainly be inviting it if she turns up with that husband. I think there is nothing more to add, except to ask counsel if there are any other observations or questions you have. Ms. Mitchell?
MS. MITCHELL:
Just with respect to the terms of the order, that the matter is stayed pending disposition of the H and C application, and Your Lordship said to give her an opportunity to file a leave application to commence judicial review of that decision.
THE COURT: Yes, and when that is decided...
MS. MITCHELL: When that is decided...
THE COURT: ... however it is decided, that ends the case.
MS. MITCHELL: That ends the case. It is an order similar to the Naredo.
THE COURT: Sort of, yes.
MS. MITCHELL: Sort of.
THE COURT: I don't want this, necessarily, to take the time to wend its way further, onward and upward. I want to give her a fair opportunity.
MS. MITCHELL: Right, and the Minister is allowed, in the interim, to come back to Court if there is evidence of delay...
THE COURT: If there is delay or dawdling...
MR. ROBBINS: ... to vary the order.
THE COURT: Yes. If there is no sincere pressing on with her application for a humanitarian and compassionate review, it is going to be dismissed. I almost promise that. Yes, Mr. Barnwell?
MR. BARNWELL: Thank you, My Lord.
THE COURT: You are welcome, Mr. Barnwell. Thank you very much for an interesting presentation. I must say that counsel are of such competence that I certainly suffered intellectual and emotional whiplash during your arguments.
THE REGISTRAR: This special sitting of the Court at Toronto is now concluded.
Ottawa, Ontario
July 7, 2000
Judge
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