Date: 19990428
Docket: IMM-1705-99
and IMM-1701-99
BETWEEN:
FLORENCE CHINELO UMENYI
in her own right and as Litigation
Guardian to the minor,
OBIANUJU UMENYI
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER & ORDER
SHARLOW J.:
[1] The applicant Florence Chinelo Umenyi in case IMM-1701-99 is a woman with Nigerian and British citizenship who has been ordered to report for removal to Britain on May 3, 1999. She is seeking a stay of the removal order pending a decision by the Minister on an application she has made under subsection 114(2) of the Immigration Act for relief on humanitarian grounds. This relief, if granted, would permit Ms. Umenyi to make her application for permanent residence from within Canada. Ms. Umenyi's 14 year old daughter Obianuju is the applicant in case IMM-1705-99. She is a citizen of Canada and is named in the same removal order. She is also seeking a stay of the order. Both applications were heard by me at the same time. I have concluded that the stay should be granted for both.
[2] There is a serious issue to be tried in both cases. For Ms. Umenyi, the issue is whether the Minister should complete the subsection 114(2) process before ordering removal. The common sense behind this submission, stated simply, is that in the circumstances of this case, removal will make the subsection 114(2) application moot because the relief sought is permission to remain in Canada. I accept the submission of counsel for the applicants that Ms. Umenyi appears to fit squarely with the Minister's own guidelines for relief under subsection 114(2).
[3] For Obianuju, the issue is whether the Minister is entitled to order removal at all, because she is a Canadian citizen. Counsel for the Respondent does not argue that the removal order is valid in her case, but suggests that she was named only as a matter of administrative convenience. I agree with counsel for the Applicants that if the issuance of the departure order against Obianuju is not authorized by law, it was either a deliberate mistake or an unintentional mistake. In either case, it raises a serious issue to be tried.
[4] With respect to the question of irreparable harm, the evidence is that Ms. Umenyi is a single parent and her daughter is dependent on her. There is evidence that Obianuju is in a special educational programme for gifted students, and that her education would be disrupted by either separation from her mother or a forced departure. Numerous cases were cited to me on the question of whether family separation or a disruption in the education of children is or is not irreparable harm. In my view, this is not a question of law but a question of fact that must be determined in light of the circumstances of each case. In this case, the facts favour the applicants.
[5] The balance of convenience also favours the applicants. The only suggestion of inconvenience to the Respondent is some potential disruption in the administration of the Act. There is no evidence that either applicant has engaged in criminal behaviour or is a burden on Canadian society.
[6] Because these two matters are related, I will also make an order that the applications for leave to commence the judicial review and any subsequent proceedings be heard together.
ORDER
The application for a stay of the removal order is granted.
Further proceedings in IMM-1701-99 and IMM-1705-99 will be heard together.
Karen R. Sharlow
Judge