Date: 20010720
Docket: IMM-2968-01
Neutral citation: 2001 FCT 810
BETWEEN:
SHERRY MOHAMMED, CRYSTAL MOHAMMED
AND CHRISTIAN MOHAMMED
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicants seek a stay of the execution of a removal order pending the determination by this Court of their application for leave and judicial review of the June 5, 2001 decision by Anh Tang (the "immigration officer") who denied their application to be processed for permanent residence in Canada, an application sponsored by Mr. J. Maharaj, a Canadian citizen and Sherry Mohammed's husband.
[2] The immigration officer ruled the marriage was not bona fide.
[3] Sherry Mohammed came to Canada in 1995 with her two minor children, Crystal, now 18, who has recently given birth and Christian, now 11. Their refugee claim was unsuccessful as was their PDRCC application. They submitted their H & C application on February 29, 2000.
[4] For the following reasons, I am ordering a stay of the execution of the removal order issued against them pending the determination whether leave for judicial review is granted or not.
[5] There are several serious issues raised in their leave application:
(1) Whether the immigration officer had a closed mind. She denies it in one place in her affidavit but is equivocal in another place (see paragraph 14 of the affidavit of Anh Tang);
(2) Whether the immigration officer refused to consider relevant evidence pointing to the length of the relationship between Sherry Mohammed and her husband;
(3) Whether the interests of the children were taken into account and to what extent;
(4) Whether the immigration officer considered the applicant's establishment in Canada and the absence of family in Trinidad.
[6] I consider irreparable harm has been made out. If Sherry Mohammed is removed, it will render her leave for judicial review application nugatory. At the heart of one of her grounds for judicial review is her claim the immigration officer had a closed mind. This issue is fact driven and will be resolved by affidavits and cross-examination. It is essential the applicant be in Canada to instruct counsel, depose evidence and be present on cross-examinations. Strayer J., as he then was, said such circumstances warranted the granting of a stay (see Shchelkanov v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 496.
[7] Irreparable harm would flow to the children if separated from their mother who provides them support.
[8] In the circumstances, the balance of convenience favours the applicant. I appreciate there is a public interest in enforcing a valid deportation order. However, this duty must be balanced with the applicants' right to proper access to the Court.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
JULY 20, 2001
Date: 200107
Docket: IMM-2968-01
OTTAWA, ONTARIO, JULY 20, 2001
Present: THE HONOURABLE MR. JUSTICE LEMIEUX
BETWEEN:
SHERRY MOHAMMED, CRYSTAL MOHAMMED
AND CHRISTIAN MOHAMMED
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
O R D E R
For the reasons given, the application for a stay of the execution of a removal order pending the determination by this Court of the applicants' application for leave and judicial review is granted.
J U D G E