Date: 20020304
Docket: IMM-5504-01
Neutral citation: 2002-FCT-235
BETWEEN:
IKBAL HEZKYAL ISKANDER
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] These are brief reasons for the grant on February 21st of a stay of execution of a removal
order scheduled for February 22nd.
[2] The applicant is a woman, a citizen of both Egypt and Sudan, a Coptic Christian by religion, who arrived in Canada on September 16, 1996. After her arrival in Canada, a daughter was born to her in January, 1997, and the child has since continued in her care.
[3] Soon after her arrival in Canada, she claimed refugee status, in October, 1996. A conditional removal order was then issued to her. In September, 1998, the Convention Refugee Determination Division determined that she was not a Convention refugee. She sought to question that decision by application for leave and for judicial review, but the application was dismissed in January, 1999. She applied for consideration under the Post-Determination Review of Claimants in Canada class, but that was refused in May, 2000. An application for judicial review of that decision was filed, but was subsequently withdrawn.
[4] In April, 1999, Ms. Iskander had submitted an application for permission to acquire permanent resident status from within Canada, based on humanitarian and compassionate (h & c) grounds. She was interviewed in relation to that application on August 30, 2000, without counsel, but with her daughter and a family friend acting as an interpreter then accompanying her. By decision letter, dated May 3, 2001, she was advised that her h & c application was refused. No reasons were then given.
[5] From May, 2001, through November, 2001, she sought, through the Member of Parliament from her area, to have the Minister of Citizenship and Immigration intervene to review her situation. In November, 2001, she was advised that the Minister would not intervene.
[6] Also in that month, November, 2001, the applicant received a call-in notice requiring her to report to Immigration Canada on December 3, 2001 for pre-removal arrangements to be made. She retained counsel, who on November 30 filed an application for leave and for judicial review of the decision dated May 3, 2001, refusing her h & c application. The application for leave and for judicial review also sought an extension of time, since it was beyond the normal period for filing.
[7] In December, 2001, the applicant received a copy of the officer's notes, made on August 30, 2000, when she had been interviewed in connection with her h & c application. Those notes were taken as reasons for the officer's decision in the absence of other reasons. The pre-removal hearing, originally scheduled for early December, was adjourned to January 9, 2002, when the applicant, with counsel, attended the pre-removal interview. At that time, the removals officer indicated that removal would be deferred pending resolution of the leave application filed in relation to the h & c decision.
[8] Then, on January 21, 2002, Ms. Iskander's counsel received a communication from the removals officer requiring the applicant to report again for a pre-removal interview, on February 8, and to bring airline tickets for departure from Canada on or before February 22, 2002. In early February, the removals officer advised counsel for the applicant that she had changed her position and was now seeking removal of Ms. Iskander without further delay. The pre-removal interview was subsequently re-scheduled to February 15. On February 13, counsel filed a draft motion for a stay and a draft affidavit requesting a telephone conference hearing on February 21. The matter was heard that day by telephone.
[9] Counsel for the parties agreed that the test for a stay is that set out in Toth v. Canada (Minister of Employment and Immigration), (1988), 86 N.R. 302 (F.C.A.). They did not agree on the application of the test in the circumstances of this case.
[10] In my view, a serious issue is raised in the application for judicial review filed in the Court on behalf of the applicant. The serious issue concerns whether or not the Minister's delegate, in considering her h & c application, gave appropriate consideration to the best interests of Ms. Iskander's daughter, now some 6 years old, as required in light of the Supreme Court of Canada decision in Baker v. Canada (Minister of Citizenship and Immigration)[1999]2 S.C.R. 817, 174 D.L.R. (4th), 193.
[11] The officer's notes from her interview on August 30, 2000, contain these references to Ms. Iskander's daughter:
...IN CANADA SUBJECT HAS ONE 4 YEAR OLD DAUGHTER, HER MOTHER AND 3 SIBLINGS...
...SUBJECT'S DAUGHTER WAS BORN IN CANADA AND IS NOW AGE 4. SHE IS TOO YOUNG TO GO TO SCHOOL AND ACCORDING TO THE SUBJECT SHE WATCHES TELEVISION, PLAYS AND ATTENDS CHURCH WITH HER FAMILY...
[Since the interview, the child is attending school and is now approximately aged 6.]
...AFTER CONSIDERING ALL OF THE INFORMATION PROVIDED, I AM NOT SATISFIED THAT THE SUBJECT WOULD SUFFER UNDESERVED, UNUSUL (sic) OR DISPROPORTIONATE HARDSHIP IS (sic) SHE WERE REQUIRED TO LEAVE CANADA. THE BAKER DECISION HAS BEEN CONSIDERED WITH REGARDS TO THE CANADIAN BORN DAUGHTER. THEREFORE AFTER REVIEWING ALL OF THE ABOVE, I AM NOT SATISFIED THAT SUFFICIENT HUMANITARIAN AND COMPASSIONATE GROUNDS EXIST TO WARRANT WAIVING A9 (1). ---- CASE REFUSED
[12] In my view, while the officer's notes make reference to the child and to the Baker decision, it can be argued, as the applicant submits, that there is no analysis of the best interests of the child in the reasoning of the officer determining the h & c application. That is not an issue I need determine except to note that it is a serious issue raised by the application for judicial review. I accept that the issue will be before the Court if an extension of time is granted to file the application for leave, and if leave is granted. Neither of those issues is before me, but for the purposes of the application for a stay I deem the issues to be before the Court for consideration by the Judge considering the leave application.
[13] With the Notice of Motion for a stay, the applicant files a report dated January 21st, 2002, by Dr. Ann Perlman, a psychologist of Toronto, who concludes that it is in the child's best interests to remain in Canada with her mother as sole care provider, and that there would be serious harm to both mother and daughter if they were separated or if they were now removed from Canada. The removal order does not relate to the daughter but only to the applicant, the mother. Nevertheless, in my view, there has been no assessment of the best interests of the child if she were now to be removed by her mother with the latter's forced removal from Canada, or if she were to remain in Canada while her mother is removed. In the absence of that assessment, there is evidence before me, in the affidavit of the applicant, supported by the letter of Dr. Perlman, that the applicant and her daughter will suffer irreparable harm, i.e. the opportunity for the child's best interests to be assessed and addressed before her mother is removed will be lost, if the stay sought is not granted pending determination of the application for judicial review.
[14] In the circumstances, in my view, the balance of convenience lies with the applicant and thus a stay was ordered, at the end of the telephone conference on February 21st.
W. Andrew MacKay
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20020304
Docket: IMM-5504-01
BETWEEN:
IKBAL HEZKYAL ISLANDER
Applicant
- and -
THE MINISTER OF CITIZENSHIP &
IMMIGRATION
Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-5504-01
STYLE OF CAUSE: Ikbal Hezkyal Iskander v. MCI
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: February 21, 2002
REASONS FOR ORDER OF The Honourable Mr. Justice MacKay DATED: March 4, 2002
APPEARANCES:
Mr. Lorne McClenaghan FOR THE APPLICANT
Mr. Roger Rowe FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Roger Rowe FOR THE APPLICANT North York, Ontario
Mr. Morris Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada