Date: 20011029
Docket: IMM-4567-01
Neutral citation: 2001 FCT 1174
BETWEEN:
OLUFUNKE JOYCE ODUMOSU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
SIMPSON J.
[1] The Applicant seeks a stay of a removal order which is to be executed on Thursday, November 1st, 2001. The Applicant's counsel was late and the matter was dismissed due to her failure to appear. However, I set aside my order and heard the application on its merits once she arrived.
[2] The background facts can be conveniently stated in chronological point form:
· On January 23, 1998 - The Applicant arrived in Canada - she was 8 months pregnant with her first child.
· On April 16, 1999 - The Applicant's refugee claim was denied due to a change in country conditions and no application was made for judicial review.
· On March 6, 2000 - The Applicant's PDRCC application was denied and no judicial review was sought.
· In December of 1999 - The Applicant's second child was born out of wedlock.
· In April of 2000 - The Applicant applied for permanent residence on Humanitarian and Compassionate grounds (the "H & C Application"). In her H & C Application she relied on her degree of establishment in Canada and cultural concerns about her younger child facing persecution in Nigeria for being a "bastard".
· In May of 2000 - The Applicant's second child was admitted to hospital with pneumonia and thereafter developed asthma which requires doctors visits and the periodic wearing of a mask.
· On August 27, 2001 - The Applicant was sent a negative Humanitarian and Compassionate decision without reasons.
· On September 21, 2001 - The Applicant received the negative H & C decision.
· On October 3, 2001 - The Applicant sought judicial review of the H & C decision on the grounds that she was not offered an interview and was not offered an opportunity to update her H & C information. She has asked for the reasons which will be produced and are likely to take the form of the officer's notes.
· On October 6, 2001 - The Applicant was sent a Direction to Report for removal.
· On October 17, 2001 - The Applicant moved for a stay of her removal.
[3] Several additional facts stand out: The Applicant did not update her H & C Application over a 16 month period. She never advised immigration authorities that her second child had developed asthma. As well, the Applicant included no material in her motion record for the stay to substantiate her claim that her second child has asthma. However, a family doctor's letter which was filed during the hearing did state that the child is periodically required to wear a mask for asthma. Further, there was no evidence of any hospitalization for asthma. This was apparently because the relevant doctor had been on vacation. Finally, no evidence was adduced to indicate whether young children have access to masks for the treatment for asthma in Nigeria.
[4] The real problem in this case is that the officer who rejected the H & C Application was not aware that the Applicant's second child had developed asthma. The question is really one of onus. Is it the responsibility of an Applicant to alert an officer to changes in circumstances relevant to an H & C Application or is an officer required to contact every Applicant to inquire about new facts before issuing a decision?
[5] This Applicant says that it is unfair and contrary to the principles of natural justice to decide an H & C Application on information that is 16 months old. However, in my view, it must be the Applicant who bears the onus of writing a letter if circumstances change particularly if a decision is not made within a reasonable time as was the situation in this case.
[6] If I followed the traditional tri-partite test on this motion, the stay would be denied. I can not identify a serious issue and the Applicant has not provided evidence which satisfies me that she or her children face irreparable harm. It is also true that the balance of convenience favours the Respondent.
[7] However, injunctions are matters of discretion and in this unusual case, I am not satisfied that the traditional test has addressed the interests of the Applicant's baby son. He clearly has some trouble with asthma and I am not comfortable with his removal to Nigeria without proper evidence about the severity of his condition and the facilities for his care in Nigeria. In my view, the Applicant failed in her duty to assemble the necessary information both for the officer who considered her H & C Application and for this Court today. However, because I also think that this failure may have been due to i) misinformation about the likely success of her H & C Application and ii) the relatively speedy delivery of the direction to report for removal and iii) the priority she gave to her application for leave and judicial review of the H & C decision, I am prepared to grant a short stay so that she will have an opportunity to present the facts about her son's condition.
[8] Accordingly, an order will be made staying the execution of her removal until January 15, 2002. If, by that date, she has submitted a fresh H & C application which documents her son's doctor and hospital visits, and gives medical opinions about the severity of her son's condition and his prognosis and which contains information from Nigerian doctors about the availability of treatment in that country then the removal order will automatically be further stayed until the disposition of that H & C Application.
"Sandra J. Simpson"
J.F.C.C.
Toronto, Ontario
October 29, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-4567-01
STYLE OF CAUSE: OLUFUNKE JOYCE ODUMOSU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
DATE OF HEARING: MONDAY, OCTOBER 29, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: SIMPSON J.
DATED: MONDAY, OCTOBER 29, 2001
APPEARANCES BY: Ms. Stella Anaele
For the Applicant
Mr. McLenaghan
For the Respondent
SOLICITORS OF RECORD: Ms. Stella Anaele
Barrister & Solicitor
4950 Yonge Street
Suite 1800
North York, Ontario
M2N 6K1
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20011029
Docket: IMM-4567-01
Between:
OLUFUNKE JOYCE ODUMOSU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER