Date: 20031208
Docket: A-114-03
Citation: 2003 FCA 470
Present: PELLETIER J.A.
BETWEEN:
SAMUEL KWABENA OWUSU
Appellant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
"Heard by teleconference between Ottawa and Toronto, Ontario, on December 5, 2003."
Order delivered at Ottawa, Ontario, on December 5, 2003.
REASONS FOR ORDER BY: PELLETIER J.A.
Date: 20031208
Docket: A-114-03
Citation: 2003 FCA 470
Present: PELLETIER J.A.
BETWEEN:
SAMUEL KWABENA OWUSU
Appellant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] I am of the view that a stay of the removal of the applicant should be granted in the particular circumstances of this case.
[2] Taking the applications judge's reasons as a whole, there is a serious issue raised as to the effect to be given to the applicant's support of his children in Ghana. While the certified question is ambiguous, it can be read as raising that issue. It is clear from the concluding words of the judge's reasons that he saw the issue of the children's interests being raised in the appeal. Consequently, the question of serious issue should, on these facts, be considered more broadly than simply in terms of the certified question itself.
[3] As for irreparable harm, I do not believe that it is accurate to say that removal will not affect the applicant's appeal, and, if he is successful, the reconsideration of his H & C application. While the effect of removal on the appeal will be minimal, if he is successful, it will be significant on his H & C application. The basis for the finding of reviewable error is the interests of the applicant's children, an issue raised by the fact that his employment in Canada makes it possible for him to support them. If he is removed, and is no longer supporting them from Canada, his grounds for receiving favourable consideration of his H & C application are significantly undermined. The effect would be to deprive him of substantially all of the benefits of his appeal if he is successful. This constitutes irreparable harm.
[4] As for balance of convenience, I am very conscious of the obligation imposed on the Minister to execute removal orders. In the circumstances of this case, where the date for the hearing of the applicant's appeal has been fixed, and that hearing is imminent, removal following the hearing of the appeal strikes me as being "as soon as reasonably practicable".
[5] I will therefore grant a stay of the execution of the removal order in force against the applicant until the hearing of the applicant's appeal on January 26, 2004. The applicant will have to deal with the question of an extension of the stay, if warranted at that time.
J.D. DENIS PELLETIER
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-114-03
MOTION FOR A STAY OF A DEPORTATION ORDER
STYLE OF CAUSE: SAMUEL KWABENA OWUSU v. MCI
PLACE OF HEARING: HEARD BY TELECONFERENCE BETWEEN OTTAWA AND TORONTO
DATE OF HEARING: DECEMBER 5, 2003
REASONS FOR ORDER OF THE COURT: THE HONOURABLE MR. JUSTICE PELLETIER
DELIVERED FROM THE BENCH BY: THE HONOURABLE MR. JUSTICE PELLETIER
APPEARANCES:
|
Mr. Mark Rosenblatt |
FOR THE APPELLANT
|
|
Ms. Ann Margaret Oberst |
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
|
Mark Rosenblatt, Barrister & Solicitor |
FOR THE APPELLANT |
|
Morris Rosenberg, Deputy Attorney General of Canada |
FOR THE RESPONDENT |