Date: 19991019
Docket: IMM-5071-99
OTTAWA, ONTARIO this 19th day of October 1999.
BEFORE: The Honorable Mr. Justice John A. O"Keefe
BETWEEN:
MARIA VALDE AND BEATRIX BOKA
and DAVID TEMAR
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
| Respondent |
ORDER AND REASONS FOR ORDER
UPON hearing the submission of counsel on an urgent basis by way of teleconference and upon reading the documentation filed by the parties I have determined that a stay of the Removal Order must be granted for the following reasons:
| 1. The enforcement officer"s decision can be subject to judicial review if leave is granted as section 48 of the Immigration Act grants some discretion to enforcement officers as removals are to be carried out as soon as "reasonably practicable". |
| 2. The affidavit of Judy Simms states that the enforcement officer stated that she had to schedule the removal as soon as possible and that she had no discretion in this regard. That evidence arguably raises a serious issue and the enforcement officer"s discretion may have been fettered. |
| 3. It is unconceivable to expect in this case that the applicant"s husband, a Canadian citizen, should follow his wife and her children to Hungary in light of the circumstances facing the family in Hungary. I have therefore concluded that based on the evidence and materials filed in this case, irreparable harm to these applicants has been demonstrated. |
| 4. In the circumstances of this case where the decision on the application for leave for judicial review and/or judicial review can be dealt with within a reasonable period of time and the applicants" applications for landing under subsection 114(2) of the Immigration Act can also be dealt with in a reasonable length of time, I have concluded that the balance of convenience favours the applicants. |
THIS COURT ORDERS THAT the Removal Order against the applicants be stayed until such time as the applicants" application for leave to commence judicial review is disposed of and if leave to commence judicial review is granted then until such time as the application for judicial review is disposed of by a judge.
THIS COURT FURTHER ORDERS THAT the Removal Order against the applicants be stayed until a decision is made by the respondent in regard to the applicants" applications for landing under subsection 114(2) of the Immigration Act provided that the applicants" applications are resubmitted or submitted as the case may be, within ten (10) days of the date of this Order, failing which, this stay granted with respect to subsection 114(2) will cease to be operative.
"John A. O"Keefe"
J. F. C. C.