Date: 19990413
Docket: IMM-654-99
BETWEEN:
ANITA REDDY,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
MACKAY J.
[1] The Applicant, Ms. Reddy, applies for a stay of execution of a deportation Order made against her on the 14th day of January 1997.
[2] The Applicant is a female citizen of Fiji. She was granted landing as a permanent resident in July 1992, as an accompanying dependent of her father. At the time of her application for admission, and upon admission to Canada, she represented that she was single and a dependant of her father. Subsequently it was established that she was in fact married at the time of her application and her admission. As a result of an inquiry under the Immigration Act this was established and the deportation Order was issued against her.
[3] The Applicant appealed the deportation Order, an appeal which was dismissed by the Appeal Division of the Immigration and Refugee Board in March 1998. The Applicant sought leave and judicial review of that decision. In October 1998 the application for leave and for judicial review was denied by this Court.
[4] In June 1998 the Applicant applied to be landed from within Canada as a permanent resident on the basis of humanitarian and compassionate grounds (the ""h and c" application") pursuant to s. 114(2) of the Immigration Act . That application was denied in December 1998.
[5] Thereafter the immigration officers concerned sought to arrange for her departure or removal from Canada, and arrangements were ultimately made for this to occur on April 17, by travel arranged by the Applicant. After this was arranged it was learned by immigration officers that in January 1999 the Applicant had made a second "h and c" application, which was outstanding. She also applied for a stay of execution of the deportation Order. That motion, earlier adjourned, was brought on for hearing on April 12 at Vancouver. The stay was in support of an application for leave and for judicial review that had been filed in the Court on February 18, 1999.
[6] It is urged on behalf of the Applicant that the requirements of the test for a stay are here met, that there is a serious issue before the Court raised by the application for leave and for judicial review, that the Applicant will suffer irreparable harm if she were now removed from Canada before the application for leave and for judicial review is determined, and that the balance of convenience favours the Applicant.
[7] After hearing counsel for the Applicant and for the Respondent, I orally dismissed the application for a stay for summary oral reasons then given, which I now confirm.
[8] I am not persuaded that there is a serious issue before the Court raised by the application for leave and for judicial review. That application concerns the decision of a removals officer determining that the Applicant should leave Canada by a date originally set for February, but then, on the basis of travel arrangements made by the Applicant herself, postponed until mid-April. In my view that does not raise a serious issue. The underlying deportation Order issued January 14, 1997 is not seriously contested by the Applicant. Rather the concern is that if she is removed from Canada, irreparable harm will be occasioned. The decision that she be removed, based on the deportation Order, the validity of which is not questioned, does not in itself raise any serious issue before the Court.
[9] Further I am not persuaded that in this case the Applicant establishes that she would suffer irreparable harm. The outstanding "h and c" application is said to be based on new considerations not raised in the application made in 1998. The new factors are said to be that the Applicant is the primary caregiver for her ailing aged mother and further that she and her fiancée, whom she has known for some eighteen months, plan to marry, hopefully in May 1999, following upon the granting to her of a divorce from her husband in Fiji. There is evidence that her mother, who is not well, lives with a married sister and her family, as does the Applicant, so that the mother is not solely dependent upon the Applicant for support. I have no doubt that separation from her family will create serious personal unhappiness and concerns for all of them, including the Applicant. Further I accept that her removal may adversely affect her relationship with her intended husband, though the marriage relationship itself has yet to be established, and its timing if it is to proceed, is uncertain.
[10] Finally, the request here is essentially the stay be granted pending determination of the application on "h and c" grounds now under consideration. On the understanding of counsel for the Respondent Minister that if that determination should prove to be favourable so that the Applicant could be landed from within Canada, the Respondent Minister would facilitate return of the Applicant to Canada for purposes of landing. In these circumstances I am simply not persuaded any irreparable harm will occur in the interim between removal at this juncture and the time at which her "h and c" application may be determined, even if that be some months hence.
[11] In these circumstances the balance of convenience clearly favours the Respondent who has responsibilities under the Immigration Act to ensure removal from Canada of persons not authorized to remain.
Conclusion
[12] In the circumstances of this case, I am simply not persuaded that there is a serious issue before the Court to be determined in the application for judicial review, or that if the Applicant now leaves or is removed from Canada she would suffer irreparable harm between now and the time at which that application, or even her outstanding application for landing on humanitarian and compassionate grounds, is dealt with by the Respondent's department.
[13] For these reasons the application for a stay was dismissed.
(Sgd.) "W. Andrew MacKay"
Judge
Vancouver, British Columbia
13 April 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-654-98
| STYLE OF CAUSE: ANITA REDDY |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: APRIL 12, 1999
PLACE OF HEARING: VANCOUVER, BRITISH COLUMBIA
REASONS FOR ORDER BY: MACKAY J.
DATED: APRIL 13, 1999
APPEARANCES:
Mr. M. Huculak
For the Applicant
Ms. G. MacDonald
For the Respondent
SOLICITORS OF RECORD:
807 - 938 Howe Street
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
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