Date: 20031127
Docket: IMM-6312-02
Citation: 2003 FC 1396
BETWEEN:
ISABEL PEDRO ADAO
Applicant
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
O'KEEFE J.
[1] This is a motion by Isabel Pedro Adao, the applicant, for an order staying her removal from Canada which is scheduled for December 18, 2002.
[2] The applicant is a citizen of Angola who came to Canada on October 25, 1999 and claimed Convention refugee status on October 27, 2002. The claim was denied on January 24, 2001.
[3] The applicant is in a common-law relationship with Francisco Da Silva. The applicant and Mr. Da Silva are the parents of Lolena Pedro Da Silva who was born on February 8, 2002.
[4] The applicant's daughter was born with a major congenital anomaly in that her entire bowel organs were outside her body when she was born. According to a medical report dated June 20, 2002, she requires close follow-up at a major children's hospital for the next year or so. According to the applicant's affidavit, her daughter is scheduled to have surgery in October 2003.
[5] The applicant's affidavit states that the required medical treatment for her daughter is not available in Angola.
[6] The applicant made an application for the Post-Determination Refugee Claimants in Canada ("PDRCC") class under the Immigration Act, R.S.C. 1985, c. I-2, which, under the Immigration and Refugee Protection Act, S.C. 2001, c. 27 and Regulations became a Pre-Removal Risk Assessment ("PRRA") application.
[7] The applicant's PRRA application was refused. The negative PRRA decision and the date of her scheduled removal from Canada was communicated to the applicant on December 5, 2002.
[8] The applicant's solicitor, at paragraph 3 of her written representations, states that the June 20, 2002 medical report documenting the applicant's daughter's condition and her treatment needs was submitted in support of the applicant's PRRA application. The PRRA officer states in the "notes to file" that no submissions were received from the applicant. The applicant, in her affidavit, states that her present application is true in fact and law.
[9] The applicant, in her affidavit, states that if she is returned to Angola, she will be imprisoned, tortured and killed. The applicant also states that in Angola, her daughter would not have access to the medical care she requires and would be exposed to an unsafe and harmful environment.
[10] I note that the applicant refers to her return to Angola but the removal order states that she is to be removed to the United States.
[11] Issue
Should the removal order be stayed?
Analysis and Decision
[12] In order to grant a stay of the removal order, I must be satisfied that:
1. The applicant has raised a serious issue to be tried.
2. The applicant will suffer irreparable harm if removed from Canada.
3. The balance of convenience favours the applicant.
The applicant must satisfy all three branches of the test (see Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.)).
[13] Serious Issue to be Tried
There is a serious issue to be tried and that is whether or not the medical evidence the applicant contends she submitted to support her PRRA application was considered by the PRRA officer.
[14] Irreparable Harm
The applicant's daughter, who was born in Toronto on February 8, 2002, is suffering from a serious medical condition in that at birth, her bowels were outside her body. Surgery was performed four days after her birth. She requires close and constant medical care and further surgery. Her doctor stated that she requires "close follow-up at a major children's hospital . . .". The applicant states that such care is not available in Angola. In addition, the applicant in her affidavit states that if she was deported back to Angola she "would be imprisoned again as I escaped the first time, and I will certainly be tortured and killed." I am of the opinion that irreparable harm would result to the applicant.
[15] Balance of Convenience
I am of the view that the balance of convenience favours the applicant. The applicant is not a threat to the public and should removal be necessary in the future, the respondent can take the necessary steps at that time.
[16] The removal of the applicant from Canada is therefore stayed until the applicant's application for leave for judicial review is denied or if leave is granted, then until the application for judicial review is disposed of by the Court.
"John A. O'Keefe"
J.F.C.
Ottawa, Ontario
November 27, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6312-02
STYLE OF CAUSE: ISABEL PEDRO ADAO
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Monday, December 16, 2002
REASONS FOR ORDER OF: O'KEEFE J.
DATED: Thursday, November 27, 2003
APPEARANCES:
Rose L. Legagneur
FOR APPLICANT
Andrea Hammell
FOR RESPONDENT
SOLICITORS OF RECORD:
Rose L. Legagneur
Toronto, Ontario
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT