Date: 19981118
Docket: IMM-5846-98
BETWEEN:
YVONNE STRACHAN AND ROSA STRACHAN
Applicants
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
WETSTON, J.
[1] The Applicants have filed a motion for a stay of removal pending disposition of an application for leave to commence judicial review pursuant to s. 82.1 of the Immigration Act seeking an order of mandamus requiring the Respondent to consider the latest humanitarian and compassionate application of the Applicants, sent November 12, 1998. The motion seeks an injunction enjoining the Minister from
removing the Applicants from Canada, pending the consideration of the application for consideration on humanitarian and compassionate grounds and pending the decision of the Supreme Court of Canada in Baker v. Canada [1997] 2 F.C. 127(FCA).
[2] The Applicants, a 43-year old mother and her 16-year old daughter, are scheduled to be removed to Grenada on November 20, 1998.
[3] The Applicants were denied Convention refugee status by the Refugee Division of the Immigration and Refugee Board in 1996. The Applicants sought leave of this Court with respect to the negative CRDD decision in which leave was denied.
[4] The Applicants sought to remain in Canada on humanitarian and compassionate grounds in 1996 and were refused. The Applicants sought leave of this Court with respect to that decision and were denied such leave.
[5] The Applicants were advised on October 21, 1998 to report for removal on November 20, 1998. On November 12, 1998 the Applicants file a motion for a stay of their removal.
[6] The Supreme Court of Canada has established a tri-partite test for determining whether interlocutory injunctions should be granted pending a determination of a case on its merits, namely, (i) whether there is a serious questions to be tried; (ii) whether the litigant who seeks the interlocutory injunction would, unless the injunction is granted, suffer irreparable harm; AND (iii) the balance of convenience, in terms of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction pending a decision on the merits.
[7] The Respondent contends that there is no serious issue in this leave application seeking mandamus against the Respondent. It is submitted that for mandamus to issue, several requirements must be met, none of which are applicable herein: (1) the Applicants must demonstrate a clear legal right to have their latest h & c application decided upon before they leave for Grenada and no such exists; (2) the alleged duty is actually owed and incumbent on the immigration officer at the present time (as the h & c application was just sent recently and the immigration officer does not owe the Applicants a decision immediately, and (3) there is no evidence that an immigration officer making the h & c assessment will refuse to perform his or her duty.
[8] The Applicants' Notice of Motion alleges that the immigration officer ignored the minor Applicant in the previous h & c application. I agree with the Respondent that the 1996 decision is not in issue before this Court. The Respondent also notes that the lawyer who made the submissions on the 1996 application never asked the Respondent to consider the Convention on the Rights of the Child. Moreover, at the time of the decision in 1996, the law, per Langner, was that the Convention was not part of the law of Canada.
[9] It is contended that the pending h & c application that was submitted after notification of removal cannot, in this particular case, reasonably be expected to cancel removal. Furthermore, it is argued that irrespective of whether the unimplemented Convention is part of Canadian law, it is submitted that there was compliance with the treaty in the 1996 negative h & c decision. Nor can it be presumed that Canada will act in violation of the treaty with respect to the pending h & c application.
[10] I agree with the Respondent that it is not known when the Supreme Court will render its judgment; in Baker v. Canada. The fact that leave was granted does not necessarily mean that there is anything necessarily wrong with the Federal Court of Appeal's unanimous judgment; the law today, which is binding on this Court, is that set out by the Federal Court of Appeal in Baker and in langner; and the facts of this case are distinguishable in any event from those in Baker in that the children were Canadian citizens.
[11] While I have some reservations that one application for the stay is properly before the court in a mandamus application in such a case, I will nevertheless consider the test.
[12] In my opinion there is a serious question in this matter. I only need turn to Baker, supra for support. I agree with the Respondent that Baker is different in that the children in that case were Canadian. In Baker of p. 136 Strayer, J.A., states as follows:
| "Having regard to the language of the certified question, we must interpret the legitimate expectations argument as being dependent on the Convention on the Rights of the Child. This the essential issue is whether it can be said as a matter of law that the Convention has created a requirement that an officer or minister in exercising the discretionary authority under subsection 114(2) of the Immigration Act must render a decision which gives some unspecified priority to the best interests of a Canadian child in determining whether to waive compliance with a deportation order already made against that child's parent." (own emphasis) |
[13] However, at p. 143 in Baker, supra, Justice Strayer stated as follows:
| "Paragraph 1, which is the most germane, requires that "[i]n all actions concerning children ... the best interests of the child shall be a primary consideration" [underlining added]. This is the core of the appellant's argument that the certified question should be answered in the affirmative. I do not agree. In my view a proceeding having to do with a deportation of a parent is not an action concerning children any more than it is an action concerning the spouse or the parents or the siblings of the deportee. No doubt the decision will have an important impact on some or all of these people but it does not make the proceeding one "concerning" them. Only if the deportation of the child itself were in issue would the humanitarian review involve a decision "concerning" that child." |
[14] Moreover, as p. 151 that F.C.A. also noted:
| "That is the Convention cannot prescribe, in a manner enforceable by the courts, the obligation to give the best interests of children, of an alien who is under order of deportation, superior weight to some other factors. Further, articles 3 and 9 of the convention which are the only ones properly under consideration on this appeal, do not by their terms purport to prescribe a priority for the best interests of the child in a proceeding under subsection 114(2), which involves the deportation of the parent and not of the child."(own emphasis) |
[15] In this case, the minor, although she is 16, is also being deported. As such whether the convention gives rise to rights and obligations as to how subsection 114(2) is exercised does give rise to a serious question.
[16] Having found a serious issue , I must determine if the applicants will face irreparable harm if removed to Grenada. There is no issue here as to physical harm or threats to life on safety. The applicants argues that actual harm involves:
| 1. Severe emotional distress to both applicants. Both have been here for 9 years. The child came as a 7 year old and is now 16 years of age. She has virtually no recollection of Grenada. The mother is working and both have family and friends in Canada. |
| 2. The serious disruption to the education of the minor applicant if forced to leave school in the middle of the year. |
| 3. The loss of any potential legal benefit of Baker, Supra. |
[17] A finding of irreparable harm is fact specific. Is family disruption, emotional distress, and disruption of education in the manner and degree advanced by the applicants sufficient in this case to amount to irreparable harm. Would a legal benefit be lost that would be irreparable?
[18] No doubt there is always disruption and emotional distress in these circumstances. I am not satisfied that for either applicant there is sufficient evidence to amount to irreparable harm. Both applicants will be distressed. However, the minor applicant is 16 and no doubt, her Canadian education will be disrupted. But, I am not satisfied she will be unable to pursue her education in Grenada. She may lose a semester in Canada, but that is not irreparable. A finding of irreparable harm on the evidence before me is simply too speculative.
[19] I do not agree that the Applicants will lose the benefit of Baker, supra, if that is the result. While clearly more difficult to pursue, it is not impossible.
[20] Obviously, it would be preferable for the minister not to remove the Applicants until a convenient break in the school year. In my view, as soon as reasonably practicable is not inconsistent with the exercise of sound administrative procedures. However, this is a matter for the minister and her officials.
[21] In such a case, the public interest requires the Minister to execute deportation orders as soon as reasonably practicable. However, this must be weighed against the inconvenience which the Applicants may suffer including the greater difficulty in pursuing , but not losing their possible legal rights in Baker, supra, and the existence of a serious issue before the court. As such, I find in this case the balance of convenience favours the Applicants.
[22] However, the test is conjunctive and therefore the motion is dismissed.
"Howard I. Wetston"
Judge
November 18, 1998
Toronto, Ontario
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-5846-98
| STYLE OF CAUSE: YVONNE STRACHAN AND |
ROSA STRACHAN
- and -
| THE MINISTER OF CITIZENSHIP AND |
IMMIGRATION
DATE OF HEARING: MONDAY, NOVEMBER 16, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: WETSTON, J.
DATED: WEDNESDAY, NOVEMBER 18, 1998
APPEARANCES: Mr. Lorne Waldman
For the Applicants
Ms. Cheryl D. Mitchell
For the Respondent
SOLICITORS OF RECORD: Lorne Waldman
Barrister & Solicitor
Jackman, Waldman & Associates
281 Eglinton Avenue East
Toronto, Ontario
M4P 1L3
For the Applicants
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19981118
Docket: IMM-5846-98
Between:
| YVONNE STRACHAN AND ROSA STRACHAN |
Applicants
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER