Toronto, Ontario, August 23rd, 2005
PRESENT: THE HONOURABLE MR. JUSTICE TEITELBAUM
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is a Motion, for an Order, staying the execution of a removal order made against the Applicant, pending the final disposition of an Application for leave and for judicial review.
[2] The normal grounds for stay are listed in the Application for stay, that is, there is a serious question to be determined, the removal of the Applicant will cause irreparable harm to the Applicant and that the balance of convenience lies in favour of the Applicant.
[3] It is trite law that in order for a Applicant to obtain a stay of a Removal Order, the Applicant
has the burden of showing that there is a serious question to be determined, that the Applicant will suffer irreparable harm if removed from Canada and that the balance of convenience lies in her favour.
[4] After reading all of the material submitted by both Council and after hearing the submissions of both Council, I have concluded that the Applicant has failed to establish that she would suffer irreparable harm.
[5] The Applicant had filed an Applciation for a Pre-removal Risk Assessment on or about October 18, 2004.
[6] It is important to note that at the time her application was made, and on the date of the hearing for the stay order, the Applicant's address is
c/o Women's Shelter, 674 Dundas Street West.
[7] As well, it is to be noted on the said Applications for a PRRA hearing, the Applicant has a son-in-law and daughter living in Canada, but never the less the Applicant is living in a Women's shelter. This fact is important because of the issue of irreparable harm.
[8] In the Applicant's written submissions, the Applicant submits that because the PRRA failed to consider the best interests of her grandchildren with whom she is not living, as the Applicant is in a Women's shelter, this gives rise to a serious issue and shows irreparable harm.
[9] At the hearing, Council for the Applicant, if I understood her submission, withdrew her submissions that the grand-children would suffer irreparable if the Applicant were removed from Canada and states the irreparable harm is in the fact the officer failed to give consideration to the grand-children.
[10] The Applicant states, in paragraph 14, of her written submission that
Where the law requires that a child's best interest be given careful considerations, failing utterly to pay heed to those interests in and of itself constitutes irreparable harm to the child in question.
[11] Council also submits four cases to support the above principal. In each of the four cases submitted, the issue was not a question of dealing with grand-children but with dealing with children of a Applicant. Each case must be decided on its own facts.
[12] In the present case, I have no evidence from the parents of the children that there exists a close relationship between the grand-children and their grand-parent, the present Applicant.
[13] I have no evidence the grand-children would suffer irreparable harm because of a separation from their grand-mother.
[14] In fact, as I said the parents of the children do not have the grand-mother living with the grand-children, but living in a Women's shelter.
[15] I understand that seperation from children or grand-children may be difficult, but in itself is not irreparable harm in immigration matters.
ORDER
THIS COURT ORDERS that the Application for stay is denied.
JUDGE
FEDERAL COURT
Name Of Counsel And Solicitors Of Record
DOCKET: IMM-4609-05
STYLE OF CAUSE: ANTONIA TRUJILLO GARCIA
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: AUGUST 22, 2005
REASONS FOR ORDER: TEITELBAUM J.
APPEARANCES:
Hilary Evans Cameron FOR APPLICANT
SOLICITORS OF RECORD:
Hilary Evans Cameron
Barrister and Solicitor
Toronto, Ontario FOR APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of