Date: 20040624
Docket: IMM-5372-04
Citation: 2004 FC 906
Toronto, Ontario, June 24th, 2004
Present: The Honourable Mr. Justice O'Keefe
BETWEEN:
STEPHEN MATTHEW PHILLIP
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is a motion by the Applicant for an Order staying his removal from Canada to Grenada.
[2] The Applicant is a citizen of Grenada who came to Canada in 1995.
[3] The Applicant and his wife met in 1985 in Grenada and lived together as a couple since 1988. They were married in 2002. The Applicant's wife, Evadney, has lived in Canada since 1989 and became a permanent resident of Canada in March 2002.
[4] The Applicant and his wife have three Canadian born children aged 8, 4 and 2 years.
[5] The Applicant has been employed for the past eight years as a tailor and as a manager of a clothing store. The Applicant is the sole financial provider for his family and his family is very dependant on him.
[6] The Applicant has filed a Humanitarian and Compassionate application (H & C) which is outstanding.
[7] The Applicant had tried to regularize his immigration status but unfortunately for him the consultant who represented him did not file a H & C application but instead filed two sponsorship applications which failed because the Applicant had no legal status to be in Canada.
[8] The Applicant filed a Pre-Removal Risk Assessment (PRRA) application which was rejected on February 27, 2004. The Applicant received Notice of the denial on April 1, 2004.
[9] The Applicant has filed for judicial review of the decision of the Expulsions Officer not to defer his removal.
Issue
[10] Should the removal of the Applicant be stayed?
[11] It is now accepted that an Expulsions Officer has some discretion and may, in certain circumstances, stay the removal of an Applicant (see Wang v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 295 (Q.L.), 2001 F.C.T. 148).
[12] In order to obtain a stay, the Applicant must satisfy the requirements set out in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.) at page 305:
This Court, as well as other appellate courts have adopted the test for an interim injunction enunciated by the House of Lords in American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396. ...As stated by Kerans J.A. in the Black case supra:
The tri-partite test of Cyanamid requires, for the granting of such an order, that the applicant demonstrate, firstly, that he has raised a serious issue to be tried; secondly that he would suffer irreparable harm if no order was granted; and thirdly that the balance of convenience considering the total situation of both parties, favours the order.
The Applicant must meet all three branches of the tri-partite test.
Serious Issue
[13] I am satisfied that the Applicant has raised a serious issue to be tried. The serious issue is whether or not the best interests of the children should be determined in the H & C application, to fulfill Canada's convention obligation, prior to the removal of the Applicant.
Irreparable Harm
[14] I am of the view that the Applicant would suffer irreparable harm if the order granting the stay is not granted as his wife's affidavit evidence is that she fears the emotional harm that his removal would cause to the children. There is also economic loss to the family as the Applicant is the only person to provide financial support for the family. In light of the facts of this case, I am of the view that these consequences would result in irreparable harm to the Applicant.
Balance of convenience
[15] The balance of convenience favors the Applicant. He has no criminal involvement and is not a danger to the public. He is employed and supporting his family. The Respondent can still remove him from Canada if his application for judicial review is not successful.
[16] The Applicant's motion for a stay of his removal from Canada to Grenada is stayed until leave in his application for judicial review is denied and if leave is granted his removal is stayed until the application for judicial review is dealt with by the Court.
[17] The style of cause in this application is amended by deleting the words "The Minister of Citizenship and Immigration" as Respondent and substituting thereafter the words "The Solicitor General of Canada".
ORDER
THIS COURT ORDERS that:
1. The Applicant's motion for a stay of his removal from Canada to Grenada is stayed until leave in his application for judicial review is denied and if leave is granted his removal is stayed until the application for judicial review is dealt with by the Court.
2. The style of cause in this application is amended by deleting the words "The Minister of Citizenship and Immigration" as Respondent and substituting thereafter the words "The Solicitor General of Canada".
"John A. O'Keefe"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5372-04
STYLE OF CAUSE: STEPHEN MATTHEW PHILLIP
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 21, 2004
REASONS FOR ORDER
AND ORDER BY: O'KEEFE J.
APPEARANCES:
Ms. Nancy Lam FOR THE APPLICANT
Ms. Neeta Logsetty FOR THE RESPONDENT
SOLICITORS OF RECORD:
Nancy Lam
Barrister and Solicitor
Toronto, Ontario FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT
FEDERAL COURT
Date: 20040624
Docket: IMM-5372-04
BETWEEN:
STEPHEN MATTHEW PHILLIP
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER