Federal Court Decisions

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Date: 20030730

Docket: IMM-5601-03

Citation: 2003 FC 934

Toronto, Ontario, July 30th, 2003

Present:           THE HONOURABLE MR. JUSTICE O'REILLY                          

BETWEEN:

                                                          KOSANKA MOMCILOVIC

                                                                                                                                                       Applicant

                                                                                 and

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 Kosanka Momcilovic takes care of a 13 year-old girl named Nadja, whose mother died of cancer nine years ago. Ms. Momcilovic applied for a humanitarian and compassionate exemption from the usual requirement that applications for permanent residence be made from outside Canada. An immigration official turned down her request. She is seeking judicial review of that decision and now asks the Court to stay her removal from Canada in the meantime.

[2]                 I find that Ms. Momcilovic has satisfied the three branches of the test for a stay: she raises a serious issue for judicial review; she points to the irreparable harm to Nadja if she were to be removed; and, she shows that the balance of convenience lies with allowing her to stay.


1. Serious issue

[3]                 The officer who reviewed Ms. Momcilovic's application agreed that it would be difficult to find a replacement for her as a care-giver. However, she felt that the family could find one through a commercial agency. In my view, Ms. Momcilovic has raised a serious issue: whether the officer's consideration of the best interests of the child was adequate in all the circumstances.

2. Irreparable harm

[4]                 Ms. Momcilovic says that she has a very strong bond with Nadja, almost as if they were mother and child. This is confirmed by Nadja's father and by Nadja herself. A psychologist concludes that Nadja would suffer "tremendous hardship" if Ms. Momcilovic had to leave, especially at the vulnerable age of 13. In my view, this evidence shows irreparable harm.

3. Balance of convenience

[5]                 In light of the above, the balance of convenience lies in allowing Ms. Momcilovic to remain in Canada while she pursues her legal remedies.

[6]                 Accordingly, this motion is allowed.


                                                                            ORDER

THIS COURT ORDERS that:

1.          The motion is allowed.

2.          The order requiring the applicant's removal on August 6, 2003 is stayed until her application for leave for judicial review is disposed of, and if leave is granted, until the judicial review proceedings have concluded.

"James W. O'Reilly"          

                                                      

Judge                     


FEDERAL COURT

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                              IMM-5601-03

STYLE OF CAUSE:           KOSANKA MOMCILOVIC

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

                                                                                   

PLACE OF HEARING:                      TORONTO, ONTARIO

DATE OF HEARING:                        JULY 28, 2003

REASONS FOR ORDER

AND ORDER :                                   THE HONOURABLE MR. JUSTICE O'REILLY

DATED:                                                JULY 30, 2003

APPEARANCES:                                 Mr. Lorne Waldman

For the Applicant

Ms. Matina Karvellas

For Respondent

SOLICITORS OF RECORD:          Lorne Waldman

Barrister & Solicitor

Toronto, Ontario

For the Applicant

Morris Rosenberg

Deputy Attorney General of Canada

For Respondent


FEDERAL COURT

                                    Date: 20030730

                                    Docket: IMM-5601-03

BETWEEN:

KOSANKA MOMCILOVIC

                                                                         Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                     Respondent

                                                   

REASONS FOR ORDER

AND ORDER

                                                   

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