Federal Court Decisions

Decision Information

Decision Content

                                                                                                                                            Date: 20030401

                                                                                                                               Docket: IMM-6714-02

Neutral Citation: 2003 FCT 384

Montréal, Quebec, April 1, 2003

Present:           The Honourable Mr. Justice Simon Noël

BETWEEN:

GEORGES ÉTIENNE

                                                                                 and

                                                          NATHALIE VAN DE PUTTE

                                                                                 and

                                                                 XAVIER ÉTIENNE

                                                                                 and

                                                             GENEVIÈVE ÉTIENNE

Applicants

and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1]         This is a motion for a stay of execution of a removal order scheduled for April 14, 2003, issued against the applicants that was attached to an application for leave attacking the decision of Nicole Nappi, an immigration officer, dated December 17, 2002, who reviewed the application for a ministerial exemption on humanitarian grounds and refused the application.


[2]         To assess the merit of the application for a stay, the Court must ask itself whether the judge-made criteria have been fulfilled:

-            the existence of a serious issue;

-            the existence of irreparable harm; and

-            the assessment of the balance of convenience.

(See Toth v. M.E.I., 86 N.R. 302 (F.C.A.))

[3]         Having heard from counsel and examined the record, I consider there are two serious issues raised by this litigation:

-            Given the custom and tradition of holding interviews before finalizing decisions, were the applicants right to expect such an interview before the final decision is made?

-            As required by subsection 25(1) of the Immigration and Refugee Protection Act, was consideration given to public interest during the analysis of the record and/or the final decision?

[4]         Furthermore, there is irreparable economic harm since the applicant Georges Étienne is currently performing contracts worth several hundred thousand dollars. If the removal were to occur, it seems to me that the co-contractors would be in a precarious situation since the performance of the contracts would be jeopardized and they would be unable to be compensated owing to the expulsion of the applicant co-contractor.


[5]         Considering the record as a whole, it is my opinion that the balance of convenience lies with the applicants. And it is in the respondent's interest that the hope of an interview, whether founded or not, be decided for the purpose of enhancing the procedure under the assessment system.

[6]         The applicants asked that the affidavit of the Citizenship and Immigration admitting officer, Nicole Nappi, dated March 27, 2003, be struck from the Court record because it raised facts for which they have not had an opportunity to respond and it was impossible to examine her at such short notice.

[7]         Such affidavits are common in response to applications for a stay of removal and it is often impossible for the Minister to prepare these affidavits and file them within a period that would allow an answer thereto and examination thereon.

[8]         In view of the decision I have reached, I do not think it is in the interests of justice to allow the request.


ORDER

The motion for a stay is allowed until the application for judicial review is decided and the motion for withdrawal of the affidavit of Nicole Nappi, an immigration officer, dated March 27, 2003, is dismissed.

                          "Simon Noël"

line

                                  Judge

Certified true translation

Suzanne Gauthier, C. Tr., LL.L.


             FEDERAL COURT OF CANADA

TRIAL DIVISION

Date: 20030401

                                                 Docket: IMM-6714-02

Between:

GEORGES ÉTIENNE

                                          and

                   NATHALIE VAN DE PUTTE

                                          and

                          XAVIER ÉTIENNE

                                          and

                      GENEVIÈVE ÉTIENNE

Applicants

and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

line

REASONS FOR ORDER

AND ORDER

line


FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET NO:                                      IMM-6714-02

STYLE:

GEORGES ÉTIENNE

and

NATHALIE VAN DE PUTTE

and

XAVIER ÉTIENNE

and

GENEVIÈVE ÉTIENNE

Applicants

and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

PLACE OF HEARING:         Montréal, Quebec

DATE OF HEARING:            March 31, 2003

REASONS FOR ORDER AND ORDER OF MR. JUSTICE SIMON NOËL

DATED:                                   April 1, 2003

APPEARANCES:

Jean El Masri                                                                      FOR THE APPLICANTS

Édith Savard                                                                       FOR THE RESPONDENT


SOLICITORS OF RECORD:

Jean El Masri                                                                      FOR THE APPLICANTS

Montréal, Quebec

Morris Rosenberg                                                              FOR THE RESPONDENT

Deputy Attorney General of Canada

Montréal, Quebec

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