Docket: IMM-5108-14
Citation:
2014 FC 641
Toronto, Ontario, July 2, 2014
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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XOLISILE PRUDENCE SONTO MKHONTA
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VUYILE NOKUKHANYA MOTSA
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Applicants
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and
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THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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ORDER AND REASONS
[1]
These Reasons are subsequent to a careful
reading of the documents of both parties and the evidence in regard to the
motion for a stay of removal.
[2]
The Court heard both parties in this regard and
has contemplated the late filing of the motion of the stay of removal
(recognizing that the removal was scheduled for tomorrow, July 3, 2014).
[3]
The principal Applicant, 44 years of age, from Swaziland, holds a management position at the Scotia Bank after two years in Canada, subsequent to study, proving herself and successfully obtaining the position as is
witnessed in the file. In the management position she holds, she is responsible
for a staff of 15 to 20 people.
[4]
The principal Applicant is being successfully
treated as she is HIV positive, unbeknownst to her, having only discovered that
after a medical examination in Canada.
[5]
In addition to her management position at the
Scotia Bank, the principal Applicant is actively working for charitable
organizations, such as the Africans in Partnership against AIDS, an
organization that is contributing to the education of the public and in
preventing and managing the disease. The principal Applicant is also
volunteering at the Christie Refugee Welcome Centre, a transitional housing
centre for refugee women and families.
[6]
In addition, since the principal Applicant
discovered her HIV positive status in 2012, she has taken part in a program at
St. Michael’s Hospital in the ongoing research branch for finding a cure for
the disease. The principal Applicant’s health has improved considerably since
she is under doctor’s supervision with evidence in that regard.
[7]
Should the Applicants be returned to their
country of origin, it would appear that a serious risk of peril to the
principal Applicant’s person would ensue. Corroborative evidence in regard to
nutritional sustenance, coupled with medical care, demonstrates that the
principal Applicant is successfully integrated into a special program which is
improving her health and well-being, as well as assisting in the furtherance of
contributing to, and finding, a cure for the disease in a leading-edge program
that is designed to help Canadians combat the disease.
[8]
In the few years the principal Applicant has
been in Canada, she has met every challenge with success in regard to her
employment, settlement, volunteer work and has also successfully integrated her
daughter into life in Canada as is evident from the evidence and her daughter
has also demonstrated that she is fully integrated therein.
[9]
The Applicants have met the tripartite criteria
of the conjunctive Toth v Canada (Minister of Employment and Immigration) (1988),
86 NR 302 (FCA) decision test.
[10]
Therefore, in this exceptional case, unto
itself, the motion for a stay of removal is granted on the very basis of its
request as specified by counsel for the Applicants.
Obiter:
It
appears that this case, bearing on the past relevant history of humanitarian
and compassionate consideration decisions is a prime case for such
consideration (bearing in mind the exceptional nature of establishment in Canada, significant well-documented volunteer activities, and benefit to Canadian society
in addition to the peril that appears in potential to ensue otherwise).
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