Date: 19981217
Docket: IMM-2403-98
BETWEEN:
HUI YUNG DENG,
GUO (GOU) PING WU and
KEVIN WU (minor),
Applicants,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
MULDOON, J.
[1] On May 20, 1998, the applicant [sic] made an urgent motion to stay the execution of removal orders until the applicants' anterior application for leave and judicial review could be heard and disposed of by this Court.
[2] The Court heard the applicants' motion by three-way telephone proceeding and by order dated May 21, 1998, this Court granted the relief precisely as asked for. Oral reasons were given by telephone at hearing's end, but the applicants' counsel was not taking notes, and there was no Court stenographer present to make a transcript. In mid June, 1998, the applicants' counsel, regretting that he did not make a request at the end of the hearing, requested written reasons. There appeared to be no urgency about that request.
[3] At the hearing the respondent's counsel brought forth three preliminary objections which were dismissed.
[4] The oral reasons made reference first to a serious issue to be determined. It resides in maladministration, which in turn sounds in fairness, or not, and overrides all other issues in weight and importance. The applicants need a humanitarian and compassionate review which must include what, to the applicants, will be their first risk assessment. Such assessment is needed in view of the effluxion of time, and the birth of their son.
[5] Irreparable harm would be to leave their son, seemingly forever, behind in Canada where he is a natural-born citizen. Anyone who is a parent or grandparent needs no convincing that such amounts to irreparable harm. Furthermore, the other choice, to take Kevin with them to live in China appears almost certain to do him irreparable harm. Also, if and when the applicants return to China they face the prospect of persecution - and no one can gainsay that, without a risk assessment, since there will be little or no chance for them of returning to Canada or of even leaving China. An H & C review ought to be humanitarian and compassionate, much broader, in fact than a cold assessment of risk.
[6] Regarding balance of convenience, everyone knows that the M.C.I. is obliged to execute removal orders, but a stay here will do no more than inconvenience the Minister, whereas without it the applicants and their Canadian son will be gone forever.
[7] The Court then articulated the provisions of the order which was pronounced in this matter.
[8] The Court based the stay of removals on the three principal grounds expressed in the applicants' notice of motion dated and filed on May 19, 1998, and the oral submissions of their counsel, as well as on the affidavit of Guo (Gou) Ping Wu. Therein lay the Court's reasons for granting the motion on May 21, 1998. The Court was quite persuaded by the applicants' presentations, despite the respondent's counsel's formidable opposition.
[9] In the meanwhile, it is noted that the applicants have let their principal case lapse. Failure to file their applicants' record was noted on October 26, 1998. This matter must now run its inevitable course.
Judge
Ottawa, Ontario
December 17, 1998