Date: 20021231
Docket: IMM-6457-02
Neutral citation: 2002 FCT 1330
OTTAWA, Ontario, this 31st day of December, 2002
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
HWAN YOUNG HWANG, EN YOUNG HWANG HUH,
HYE WON HWANG AND WON KI HWANG
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicants, Hwan Young Hwang (the "primary applicant"), his wife, his son and his daughter, have moved for a stay of a removal order to be executed on January 1, 2003. They wish to have the removal order stayed in order to submit an application for landing on humanitarian and compassionate grounds ("H & C grounds") pursuant to section 25 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"). I am granting their motion for such an order for the reasons given below.
[2] The applicants are citizens of Korea. They entered Canada in 1997 as visitors. The primary applicant dealt with an immigration consultant soon after the arrival of his family in order to obtain an employment authorization. In 1998, that immigration consultant and his sister and associates were arrested and charged with fraud and other crimes. The Royal Canadian Mounted Police (RCMP) were in charge of the investigation into this matter and informed the primary applicant that he was needed to testify at the trial of the immigration consultant and his co-accused. The RCMP took away the passports of the applicants and informed the primary applicant that he could not return to Korea until he had testified.
[3] The applicants obtained employment and student authorizations with the help of the RCMP. The applicants took advantage of opportunities that were available to them with these authorizations. The primary applicant began to work for a Korean-language newspaper in Toronto as its art director. He also joined a Korean church where he became involved in its activities. The daughter of the primary applicant has graduated from a community college and the son is beginning study at another college. The applicants have not been idle during their time in Canada.
[4] The applicants have submitted several applications to the respondent in an effort to remain in Canada. In February 2000, the applicants applied for landing on H & C grounds. In August 2000, an Immigration Officer ("IO"), acting on behalf of the respondent, denied this application. In July 2001, the RCMP advised the primary claimant that his presence in Canada was no longer required and that he should leave Canada by March 2002. The applicants then applied for refugee status, attended the hearing of this claim in March 2002 and received a decision in June 2002 denying that claim.
[5] While awaiting the determination of the refugee claim, the applicants submitted an application for permanent residence under the Independent Immigrant Class. They submitted this application to the respondent's premises in Buffalo, New York. In February 2002, they were notified that this application had been rejected because the cheque was over six months old by the time it had reached the person or persons responsible for processing the application and was therefore stale-dated.
[6] Following these procedures and an unsuccessful application under the Pre-Removal Risk Assessment Program (which, under the IRPA, replaces the Post-Determination Refugee Claimant Class), the applicants were instructed to report to an office of the respondent known as the Greater Toronto Enforcement Centre (GTEC). They were asked to report there by December 9, 2002 with airline tickets entitling the applicants to travel to Korea on a date no later than January 5, 2003. They complied with this request.
[7] The applicants claim that their circumstances have changed since their last H & C claim was disposed of. The primary applicant is earning a higher income, his wife is now employed and their son and daughter are making academic progress. They have also become further attached to Canada and have fewer ties to Korea than they previously had. It is on these bases that they intend to make a fresh H & C claim. They require a stay of their removal order to do so.
[8] The applicable test is that set out in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.). In order for a stay to be granted, the applicant must raise a serious issue to be tried, the applicant must demonstrate that he or she would suffer irreparable harm if the relief sought were not granted, and the balance of convenience must favour the granting of the relief.
[9] A serious issue exists in the present case. Given the web of exceptional circumstances faced by the applicants since arriving in Canada, the manner in which the respondent exercised or failed to exercise discretion is a serious issue. The decision whether to grant landing at this time based on H & C considerations is also a serious issue. These are issues that are neither frivolous or vexatious, and which ought to be fully examined before being resolved.
[10] I do not accept the submission of the respondent that the serious issue threshold is higher because the interlocutory relief would amount to the permanent relief that the applicants are ultimately seeking. The relief that I am being asked to order will only delay the execution of the removal order. It does not amount to a review of the removal order or a grant of landing based on H & C grounds, which is what the applicants want.
[11] The applicants have established that they face irreparable harm if the stay is not granted and they are required to return to Korea. They have made substantial efforts to integrate themselves in their community during their time in Canada. The length of their stay in Canada was, at least initially, determined by factors beyond their control; to wit, the constraint placed on the applicant by the RCMP that he remain in Canada to testify against his immigration consultant. I cannot accept the submission of the respondent that the applicants were free to return to Korea and come back to Canada as needed to testify. That assertion is belied by the evidence given by the applicants that their passports were taken away.
[12] Over the time that they have spent in Canada, they have worked to better themselves and to make substantial contributions to their community. To force them to leave behind what they have accumulated would effectively destroy the fruits of their efforts over the past five years. It would be as if these years were wasted, or were for naught. Agents of the government of Canada put the applicants in the position they faced during their time in Canada, and the applicants made the most of what they had. For the government to bring an abrupt end to the stay of the applicants in Canada, a stay which it prolonged, would be unjust and would cause loss to the applicants which no remedy, including monetary damages, could compensate.
[13] It is also clear that the balance of convenience favours granting this stay. The respondents do not allege that any of the applicants pose a danger to Canada, or that their presence in this country is otherwise deleterious. The circumstances that they have faced in this country and those that they would face if they were to return to Korea are considerably more serious than any administrative inconvenience and expense that the respondent will incur through additional dealings with the applicants. Notwithstanding the assertions of counsel for the respondent, nothing on the record indicates that the expedited removal of these applicants is in the public interest.
[14] In Arduengo v. Canada (Minister of Citizenship and Immigration), [1997] 3 F.C. 468, Cullen J. (as he then was) noted at paragraph 55 that:
[...] Section 50 of the Federal Court Act allows this Court, in its discretion, to stay proceedings in any cause or matter where for any reason it is in the interest of justice that the proceedings be stayed. Any stay ordered under this section may subsequently be lifted in the discretion of this Court. [...]
[15] I believe that this is a case which justifies the exercise of such discretion. Accordingly, I order that the removal order of the applicants be stayed.
ORDER
THIS COURT ORDERS THAT:
1. For the above reasons, the removal order issued by Mr. Hughes Simard, to be executed on January 1, 2003, be stayed to allow filing of an application for landing based on humanitarian and compassionate grounds pursuant to s. 25 of IRPA. The said application shall be filed within 45 days of the release of this order, failing which the stay would be lifted. On filing of such an application within the appropriate period, the stay would continue until a decision is rendered therein, subject to judicial review of that decision.
____________________________
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6457-02
STYLE OF CAUSE : HWAN YOUNG HWANG,
EN YOUNG HWANG HUH,
HYE WON HWANG AND WON KI HWANGand
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING : Ottawa, Ontario by teleconference
DATE OF HEARING : December 30, 2002
REASONS FOR ORDER : THE HONOURABLE MR. JUSTICE BEAUDRY
DATED : December 31, 2002
APPEARANCES:
Ms. Wennie Lee FOR THE APPLICANTS
Ms. Mary Matthews
Department of Justice FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ms. Wennie Lee FOR THE APPLICANTS
North York, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario