Date: 20011031
Docket: IMM-4798-01
Neutral citation: 2001 FCT 1177
Toronto, Ontario, Wednesday, the 31st day of October, 2001
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
ALETHEA BROWN
NADINE MCDONALD
Applicants
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is a motion by Alethea Brown and Nadine McDonald (the "applicants") for an order staying their deportation to Jamaica. The removal is scheduled for November 1, 2001.
[2] According to the enforcement officer's affidavit, the following is a chronology of events with respect to the applicants:
(a) The principal applicant, Alethea Brown, entered Canada on June 27, 1995 as a visitor with status to expire on December 27, 1995.
(b) The principal applicant did not apply for an extension of her visitor's visa and has remained in Canada since her original entry.
(c) The principal applicant appears to have worked in Toronto without authorization from approximately September 8, 1995 to March of 1996.
(d) The principal applicant was arrested and detained on June 17, 1997 as a result of an investigation. She was released on June 28, 1997 on a cash bond of $2,000 and a performance bond for $2,000 with terms and conditions, including reporting once a week to the Immigration Reporting Centre.
(e) The applicant, Nadine McDonald, the principal applicant's daughter, apparently came to Canada from the United States sometime in January of 1997 without coming to the attention of authorities at the port of entry at Niagara Falls. She travelled through by car and was misrepresented by another person in the car.
(f) The principal applicant made a refugee claim on or about September 25, 1997 which was denied on April 24, 1998. The principal applicant never challenged this decision.
(g) The principal applicant made a PDRCC application on or about May 10, 1998 which was refused on January 28, 1999. The principal applicant never challenged this decision.
(h) The principal application made an H & C application on or about March 15, 1999 as an independent applicant.
(i) On or about April 21, 1999, a supervisor at GTEC decided not to initiate any removal arrangements for the principal applicant in order for the H & C application to be determined and because her daughter Nadine had a pending refugee claim.
(j) The principal applicant then apparently married Leicester Francis on or about July 24, 1999 and had one child from this marriage named Sydaejha Francis who was born on December 14, 1999.
(k) The principal applicant was interviewed twice by an immigration officer, first on February 2, 2000 to deal with the general H & C considerations with both her daughters and her spouse present, and then on February 29, 2000 with her spouse to assess the bona fides of the marriage.
(l) The principal applicant did not report as required by the terms and conditions of her immigration reporting bond on April 4 and May 5, 2000. She was not arrested as a result. It appears she was given another chance when she reported the next month and gave her reasons for missing the two dates.
(m) The H & C application was refused on June 16, 2000.
(n) The principal applicant challenged the negative H & C decision by serving and filing an application for leave and judicial review on July 18, 2000. The application was dismissed on February 8, 2001.
(o) On May 2, 2001 I sent a Call-in Notice to the principal applicant to appear for a removal interview on May 10, 2001. The applicants attended the interview but Nadine, whose passport had expired, did not have the relevant documents to obtain a travel document to Jamaica. The principal applicant never told me what she was going to do with her Canadian-born child and her Canadian niece. I told her that she would have to decide and let me know so that I could make the arrangements for them. I then rescheduled the interview for May 17, 2001.
(p) At that time I explained to the principal applicant that I would be scheduling removal arrangements for her and Nadine and that they would be given 4 weeks notice prior to the scheduled removal arrangements. She did not tell me to make travel arrangements for the two Canadian-born children. The principal applicant requested that I give her daughter Nadine the chance to complete her school year. I agreed and said that I would book removal after the school year ended.
(q) The principal applicant has brought a second H & C application on or about August 24, 2001 and this pending application has been referred to CIC in Scarborough on or about September 17, 2001.
(r) The principal applicant has been on welfare from February, 1998 to January 2001 continuously. Then again in June, 2001 and July 2001, and again in September, 2001 to present.
[3] The applicant, Nadine McDonald is currently in grade eleven at school and the applicant, Alethea Brown's niece, Jheanelle Allen is in grade 6. The applicant, Alethea Brown was granted custody of her niece, Jheanelle Allen on March 22, 1999, after the death of her sister.
[4] Jheanelle Allen and the applicant, Alethea Brown's other child, Sydaejha Francis, approximately two years old, were both born in Canada.
[5] Nadine McDonald was born in Jamaica.
Issue
[6] Should the removal order be stayed?
Analysis and Decision
[7] It is now accepted that an enforcement officer has some discretion and may, in certain situations, stay the removal of the applicants (see Wang v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 295 (F.C.T.D.)).
[8] In order to obtain a stay, the applicants 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 [Footnote 3 appended to judgment]. 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 favors the order.
The applicants must meet all three branches of the tri-partite test.
[9] Serious Issue
The enforcement officer, in reaching her decision not to defer the applicants' removal, made reference to the considerations given to the interests of the Canadian born children by the officer who denied the earlier H & C application. At that time, it appears that the applicant, Alethea Brown's niece was living with the applicant, Alethea Brown's sister in the United States. The niece is now living with the applicant, Alethea Brown. As the circumstances with respect to the applicant's niece's place of abode have changed, I am of the opinion that there is a serious issue to be tried. That serious issue is whether or not the interests of the Canadian born children were properly addressed.
[10] Irreparable Harm
In this case, we have an applicant mother, her 18 year old daughter, her 12 year old niece for whom she has custody and her two year old daughter living together in Canada. The two older children are part way through a school year. If the family members do not go with the applicant mother to Jamaica, then it appears that they would likely go to foster homes. In my opinion, the facts of this case show that irreparable harm would result to the applicants and the Canadian born children if the applicants were removed from Canada at this time.
[11] Balance of Convenience
The applicants have asked that the removal order be stayed until the H & C application is dealt with by the respondent. Even though the Minister has a duty to enforce the provisions of the Immigration Act R.S.C. 1985, c. I-2, I am of the view that the Minister can do that in this case should there be a negative decision on the current H & C application. The balance of convenience favours the applicants.
[12] The removal order issued against the applicants is hereby stayed until a decision is rendered on the H & C application filed on August 23, 2001.
ORDER
IT IS ORDERED THAT:
1. the removal order issued against the applicants is hereby stayed until a decision is rendered on the H & C application filed on August 23, 2001.
"John A. O'Keefe"
J.F.C.C.
Toronto, Ontario
October 31, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4798-01
STYLE OF CAUSE: ALETHEA BROWN
NADINE MCDONALD
- and -
MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MONDAY, OCTOBER 29, 2001
REASONS FOR ORDER
AND ORDER BY: O'KEEFE J.
DATED: WEDNESDAY, OCTOBER 31, 2001
APPEARANCES: Ms. Marjorie Hiley
FOR THE APPLICANTS
Ms. Diane Dagenais
FOR THE RESPONDENT
SOLICITORS OF RECORD: Marjorie Hiley
Barrister and Solicitor
Flemingdon Community Legal Services
49 The Donway West
Suite 205
Toronto, Ontario
M3C 3M9
FOR THE APPLICANTS
Morris Rosenberg
Deputy Attorney General of Canada
FOR THE RESPONDENT
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20011031
Docket: IMM-4798-01
BETWEEN:
ALETHEA BROWN
NADINE MCDONALD
Applicants
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER