Date: 20100817
Docket: IMM-4381-10
Citation:
2010 FC 823
Ottawa, Ontario, August 17,
2010
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
IN HEE KANG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Ms.
Kang has been directed to report to Pearson International Airport, in Toronto,
tomorrow evening, in order to be removed to South Korea. She brought
on a motion for a stay of that removal pending the outcome of her application
for leave and for judicial review of a decision denying her the privilege of
applying for permanent residence status from within Canada on
humanitarian and compassionate grounds. At the conclusion of the hearing, I
stated that I would grant a stay.
[2]
The
test for a stay, like that of an interlocutory injunction, is well-known. Two
cases invariably cited are that of the Court of Appeal in Toth v. Canada (Minister
of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.), and that of
the Supreme Court of Canada in RJR - MacDonald v. Canada (Attorney
General), [1994] 1 S.C.R. 311. It is incumbent on Ms. Kang to establish a
serious issue, irreparable harm, and that the balance of convenience rests with
her.
[3]
On her particular fact-situation, the serious issue test is met if
she has raised a non-frivolous, non-vexatious issue. She submits, which is not
contested, that the officer who rendered the negative decision must have been
working from a template. She submits it follows that no independent analysis of
her particular fact-situation was made. However, it is not necessary for me to
reach any conclusion on that submission as I am satisfied that what we have in
this case is a recital of facts followed by a conclusion, without a proper
analysis.
[4]
As stated by Mr. Justice Pelletier, speaking for the Court of
Appeal, in North v. West Region Child and Family Services Inc., 2007 FCA
96, [2007] F.C.J. No. 400 (QL), basing himself on R. v. Sheppard, 2002
SCC 26, [2002] 1 S.C.R. 869, at paragraph 4:
If the decision-maker does not
provide reasons which set out his findings and the basis upon which they are
made, there is no substrate for the application of the standard of review.
[5]
Ms.
Kang is a 56 year old divorcee who provided considerable information as to
discrimination and lack of job opportunities facing similarly placed women in Korea. The officer
was not satisfied that she would face unusual and undeserved or
disproportionate hardship should she return there. However, no analysis was set
out. No reasons were given for this conclusion. A serious issue has been
raised.
[6]
As
to irreparable harm, there is case law going both ways as to one’s need to earn
a living. The officer noted her success in Canada and concluded, without
analysis, that she would have no difficulty in South Korea. Given that
both Toth, above, and RJR McDonald, above, dealt with irreparable
harm in an economic sense, not in an actual risk to life and limb, I am
satisfied that a case has been made out for irreparable harm.
[7]
Finally,
there is no basis for suggesting that the balance of convenience rests with the
Minister. It is preferable to maintain the status quo ante. A decision as
to whether or not leave should be granted to judicially review the officer’s
decision should, in the normal course, be rendered in the next few months.
[8]
Nor
was argument made that Ms. Kang did not come to the Court with clean hands.
ORDER
FOR REASONS GIVEN;
THIS COURT
ORDERS that a stay of removal is granted pending the outcome of the
underlying application for leave and for judicial review.
“Sean Harrington”
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