Date: 19990601
Docket: IMM-2259-99
BETWEEN:
MERLYN CATHLYN JOHN, GIOVANNI JACKSON JOHN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER AND REASONS FOR ORDER
RICHARD A.C.J.:
[1] This is a motion dated May 4, 1999 on behalf of the applicant for a stay of the removal of the applicant from Canada, until the end of the current public school year of Giovanni Jackson John, and until such time as the applicant"s application for leave to commence judicial review can be disposed of, and if leave to commence judicial review is granted, until such time as the application for judicial review is disposed of by a Judge, and/or a decision is made by the respondent in regard to the applicant"s application for landing under subsection 114(2).
[2] On October 17, 1998, the applicant was arrested, with warrant and detained for a decision to be made pursuant to subsection 27(4) of the Immigration Act. A determination and review was conducted by a senior immigration officer after providing the applicant with an opportunity to address the allegations in the section 27 report. The record shows that the applicant understood the purpose of the review and that she conceded the correctness of the allegations.
[3] Subsection 27(4) mandates that the senior immigration officer, if satisfied that the person is described in paragraph 27(2)(e) by reason of paragraph 26(1)(c) of the Act, issue a departure order against that person.
[4] A departure order was issued against the applicant on October 19, 1998 which she signed.
[5] The applicant made an application on humanitarian and compassionate grounds which was received on November 19, 1998.
[6] The applicant failed to report for her removal to St. Vincent on April 27, 1999.
[7] On May 4, 1999, the applicant brought a motion for a stay of removal and filed an application for leave and for judicial review purporting to challenge two decisions: one, to issue a departure order against her, and, the second, to refuse to defer the execution of the removal order.
[8] The motion was adjourned by the parties to May 31, 1999.
[9] The record shows that the applicant"s son became ill with the chickenpox in May. According to a doctor"s note, the condition of the applicant"s son will "clear" by about May 29, 1999.
[10] There are currently no removal arrangements made for the applicant, since she failed to appear on April 27, 1999. However, there is outstanding a warrant for her arrest pursuant to section 103 of the Act. Counsel for the respondent stated that, if the applicant were to be arrested, one of two scenarios would occur namely, if detained she would be given forty-eight hours notice of any scheduled removal to St. Vincent, or, if released, she would be given approximately two weeks notice of any scheduled removal to St. Vincent.
[11] The applicant does not meet the requirements of the tripartite test which are conjunctive.
[12] Even if I were to accept that there is a serious issue, the applicant has not satisfied the test of irreparable harm and, in the circumstances, I am satisfied that the balance of convenience favours the Minister.
[13] A claim of irreparable harm cannot be based on speculation.
[14] The evidence does not indicate that the applicant is at risk if she returns to St. Vincent or that she would suffer irreparable harm by being removed to St. Vincent.
[15] There is, at present, no scheduled removal of the applicant and there is no departure order against her son.
[16] The only irreparable harm alleged is to the applicant"s son who may not be able to complete his school year if the applicant is removed from Canada before June 25, 1999 and if there was no one to care for him in Canada during that period.
[17] The evidence indicates that the son"s father and the applicant"s sister are in Canada.
[18] There is no evidence that if her son, who is 10 years old, were to follow his mother and leave Canada before June 25, 1999 that the son would have to repeat his school year.
[19] I conclude that the fact situation before me does not establish irreparable harm to the applicant.
[20] Accordingly, it is ordered that the motion for a stay of the removal of the applicant from Canada is dismissed.
____________________________
Associate Chief Justice
Ottawa, Ontario
June 1, 1999