Date: 20020528
Docket: IMM-3019-01
Neutral citation: 2002 FCT 604
BETWEEN:
MONICA VARGAS GALLARDO,
EVELYN DAIANA REYES and
BRAIAN ADRIAN REYES
Applicants,
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is a motion by the applicants for a stay of the Removal Order made against them on May 15, 2002. Their removal from Canada is scheduled for May 30, 2002.
[2] The applicant, Monica Vargas Gallardo, (Gallardo) was born in Chile and is a citizen of Chile.
[3] The applicant Gallardo is the mother of three children:
EVELYN DAIANA REYES born in Argentina on August 5, 1991
BRAIAN ADRIAN REYES born in Argentina on May 14, 1998
KEVIN MAXIMILLIAN REYES born in Canada on November 23, 1999
[4] The applicant Gallardo came to Canada on a visitor visa on August 23, 1999. The visitor visa expired on February 23, 2000. The applicant was accompanied by her two older children and was pregnant at the time with the youngest child Kevin Maximillian who was born in Canada on November 23, 1999.
[5] On or about April 12, 2001 the applicant Gallardo applied for Humanitarian and Compassionate consideration pursuant to s. 114(2) of the Immigration Act.
[6] The applicant Gallardo did not inform the immigration officer of her husband's abuse and her intention to stay in Canada without sponsoring her husband to come to Canada. She stated that she did not tell the officer as she was afraid the officer would contact her husband.
[7] The Humanitarian and Compassionate application was denied in a decision dated
May 31, 2001.
[8] After the denial, the applicant Gallardo submitted further evidence including a psychiatrist's report. The immigration officer reviewed the additional information and determined that the additional information did not change his decision of May 31, 2001.
[9] The applicant Gallardo's father, mother and sister all live in Canada. The applicant was issued a Record of Landing to come to Canada with her family but the Record of Landing expired in November 1994.
[10] The applicants applied for leave and for judicial review of the Humanitarian and Compassionate application on June 19, 2001. Leave was granted on May 2, 2002 and the judicial review application is presently scheduled to be heard on July 31, 2002.
Issue
[11] Should the removal order issued against the applicant be stayed?
Analysis and Decision
[12] It is now accepted that a removal officer has some discretion and may in certain circumstances, stay the removal of the applicant (see Wang v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 295 (F.C.T.D.)).
[13] In order to obtain a stay, the applicant must satisfy the requirements set out in Toth v. Canada (Minister of Employment and Immigration) (1998), 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 favors the order.
The applicant must meet all 3 branches of the tri-partite test.
[14] The only factor in issue before me is the existence of irreparable harm. The respondent conceded that this application raises a serious issue to be tried and that the balance of convenience will follow the finding on irreparable harm.
Irreparable Harm
[15] What must be determined is whether irreparable harm will be suffered by the applicants if they are removed from Canada to Chile on May 30, 2002. The applicants, in this case, are a mother and her two children born in August 1995 and May 1998. A third child was born in Canada on November 23, 1999. The applicant Evelyn Daiana Reyes is part way through her first year of school and would be removed before she completed the school year. In addition to these facts there are two expert medical reports that state that among other things that it would be "extremely risky and dangerous prospect for her and her children" to return to either Argentina or Chile. The psychiatrist also stated that there was "profound risk to the health of the children in terms of their psychological functioning". Based on these cumulative factors I am of the opinion that the applicants would suffer irreparable harm if they were removed to Chile. The judicial review application is scheduled to be heard on July 31, 2002.
[16] The motion for a stay of the removal order against the applicants is hereby granted until the application for judicial review is disposed of by the Court.
ORDER
[17] IT IS HEREBY ORDERED THAT:
The removal order issued against the applicants is hereby stayed until their application for judicial review is heard and disposed of by this Court.
" John A. O'Keefe"
Judge
Winnipeg, Manitoba
May 28, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS OF RECORD
DOCKET: IMM-3019-01
STYLE OF CAUSE: Monica Vargas Gallardo, Evelyn Daiana Reyes and Braian Adrian Reyes v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: May 27, 2002
REASONS FOR ORDER AND ORDER OF
THE HONOURABLE MR. JUSTICE O'KEEFE
DATED MAY 28, 2002
APPEARANCES
David Davis for the Applicants
Nalini Reddy for the Respondent
Department of Justice
301 - 310 Broadway
Winnipeg, MB R3C 0S6
SOLICITORS OF RECORD
Davis & Luk for the Applicants
Immigration Law
201 - 233 Portage Ave
Winnipeg, MB R3B 2A7
Morris Rosenberg for the Respondent
Deputy Attorney General of Canada