Date: 20011122
Docket: IMM-2631-01
Neutral citation: 2001 FCT 1284
Toronto, Ontario, this 22nd day of November, 2001
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
NILUFAR HASAN, NANTY HASAN,
DANA HASAN
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for a stay of the removal order which ordered Nilufar Hasan, Nanty Hasan and Dana Hasan (the "applicants") be removed from Canada to Bangladesh on November 29, 2001.
[2] The applicants came to Canada from Bangladesh to seek refugee protection on September 16, 1997, which claim was denied and an application for leave and for judicial review was dismissed on October 29, 1999.
[3] On September 25, 2000, the applicant, Nilufar Hasan states that she made an application for H & C considerations. She states that the application was sent to the case processing centre at Vegreville, Alberta.
[4] On March 28, 2001 the applicant, Nilufar Hasan reported to the Greater Toronto Enforcement Centre where she was informed by the immigration officer that he would be applying for a travel document to Bangladesh on her behalf.
[5] On May 23, 2001, the applicants' counsel, Mr. Kleiman, telephoned the immigration officer and requested that the removal be deferred until the H & C application was dealt with. The officer told counsel that he would not defer removal despite the outstanding H & C application.
[6] An application for leave and for judicial review of the immigration officer's decision of May 23, 2001 was filed on May 28, 2001.
[7] The applicant, Nilufar Hasan stated in her affidavit that she attended at the Greater Toronto Enforcement Centre on October 9, 2001 where she states she was told that the immigration officer was going to defer her removal until her H & C application was dealt with. Then on November 7, 2001 when she attended at the Enforcement Centre, she was directed by the officer to report for removal to Bangladesh on November 29, 2001. She asked why he had changed his mind. He indicated that he had not changed his mind and that no decision had been made on the H & C application.
[8] The immigration officer states that on October 9, 2001 he told the applicant, Nilufar Hasan that their removal would take place unless they received a favourable and approved H & C application prior to their scheduled removal date.
[9] According to the respondent's records, on April 11, 2001 the immigration officer had checked the computer and discovered that an H & C application had not been filed.
[10] The immigration officer did not convey this information to the applicants or their counsel or to anyone and made a decision not to defer the removal until the H & C application was determined.
[11] On November 16, 2001 the immigration officer made known in his statutory declaration that he found out on April 11, 2001 that an H & C application was not filed with the respondent.
[12] The applicants, up until November 16, 2001, were of the view that their H & C application was in the process of being evaluated.
[13] The applicant, Nanty Hasan was born in Bangladesh on February 9, 1987 and is currently a grade 8 student in Hamilton, Ontario.
[14] The applicant, Dana Hasan was born in Bangladesh on December 4, 1990 and is currently a grade 5 student in Hamilton, Ontario.
[15] The third child, Hanifa Hasan was born in Canada on October 3, 1997 and was scheduled to start kindergarten in September, 2001.
[16] Issue
Should the removal order issued against the applicants be stayed?
[17] Analysis and Decision
It is now accepted that a removal officer has some discretion and may, in certain circumstances, 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.)).
[18] 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, favours the order.
The applicants are required to satisfy all three branches of the tri-partite test.
[19] Serious Issue
In this case, the applicants have progressed to the removal stage without any assessment being made of the interests of the Canadian born child, Hanifa Hasan. The immigration officer knew since April 11, 2001 that no H & C application was on file but did not convey this information to the applicants and instead considered the request for a deferral of the removal order until the H & C application was decided when he knew there was no H & C application on file. It is my opinion that the facts cited above raise a serious issue to be tried and that issue is whether the immigration officer breached any duty of fairness owed to the applicants in the circumstances.
[20] Irreparable Harm
In this case, the applicants would be removed from Canada and the children would be removed from school and not be able to finish their school year. If there had been an awareness that there was no H & C application on file, a replacement application could have been filed and the Canadian born child's interests may have been well on the way to being evaluated. In the circumstances of this case, I find that irreparable harm would result for the applicants if the order was not granted.
[21] Balance of Convenience
I am of the view that the balance of convenience favours the applicants. The Minister can still carry out her duties under the Immigration Act, R.S.C. 1985 c. I-2 once the process is completed.
[22] The removal order issued by the immigration officer is hereby stayed until such time as the application for leave and for judicial review of the decision of May 23, 2001 has been disposed of and if leave is granted, then until such time as the judicial review has finally been disposed of by this Court.
ORDER
[23] IT IS ORDERED that the removal order issued by the immigration officer is hereby stayed until such time as the application for leave and for judicial review of the decision of May 23, 2001 has been disposed of and if leave is granted, then until such time as the judicial review has finally been disposed of by this Court.
"John A. O'Keefe"
J.F.C.C.
Toronto, Ontario
November 22, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2631-01
STYLE OF CAUSE: NILUFAR HASAN, NANTY HASAN, DANA HASAN
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MONDAY, NOVEMBER 19, 2001
REASONS FOR ORDER
AND ORDER BY: O'KEEFE J.
DATED: THURSDAY, NOVEMBER 22, 2001
APPEARANCES:
Mr. Daniel Kleiman
For the Applicants
Mr. Ian Hicks
For the Respondent
SOLICITORS OF RECORD:
Daniel Kleiman
Barrister & Solicitor
637 College Street
Suite 203
Toronto, Ontario
M6G 1B5
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20011122
Docket: IMM-2631-01
BETWEEN:
NILUFAR HASAN, NANTY HASAN,
DANA HASAN
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER