Date: 20010327
Docket: IMM-879-01
Neutral Citation: 2001 FCT 249
Halifax, Nova Scotia, this 27th day of March, 2001
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
SAM RACK KIM, JUNG YUL KIM and
STEVEN MYUNG JOON KIM
Applicants
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
[1] This is a motion by the applicants for an order granting a stay against the execution of a removal order issued against the applicants on February 12, 2001.
[2] The applicants arrived in Canada in 1995 and are citizens of Korea who originally entered Canada as visitors. They applied to become permanent residents of Canada which application was denied. The applicants have filed various applications for review of decisions affecting them. The latest application for leave and for judicial review involves the refusal of their H & C application on February 7, 2001.
[3] When the applicants left Korea, they were not aware of any criminal charges to be laid or laid against the parents.
[4] The parent applicants state that they will be detained in jail in Korea under inhumane conditions pending their trial on the criminal charges which deal with NSF cheques and other debts of the parents which resulted from the failure of their business.
[5] The applicant, Steven Myung Joon Kim is the son of the other two applicants and is currently finishing his last year of high school, studying OAC. If returned to Korea, he will not likely get credit for his senior year.
[6] The parents own and operate a convenience store in Kitchener, Ontario.
[7] In order to grant a stay, I must be satisfied that the applicants have met the tri-partite test outlined in Toth v. Canada (Minister of Employment and Immigration) (1988), 6 Imm. L.R. (2d) 123 (F.C.A.). The applicants must meet all three parts of the tri-partite test. Summarized, these tests are:
1. Have the applicants demonstrated that they have a serious issue to be tried?
2. Have they demonstrated that they would suffer irreparable harm if the stay order was not granted?
3. Have they demonstrated that the balance of convenience considering the total situation of both parties favours the order being granted?
Serious Issue
[8] I am of the opinion that the applicants have raised serious issues in their application for judicial review. These issues include those outlined in the application for judicial review and are:
4. Whether the immigration officer breached the duty of fairness in reaching negative credibility conclusions without having interviewed Mr. And Ms. Kim, and in concluding that they were criminals who had fled the justice in Korea without giving the Kims an opportunity to reply?
5. Whether the immigration officer's decision is unreasonable because:
(a) His conclusion that Mr. And Ms. Kim were likely guilty of the charges against them in Korea was reached in a perverse and capricious manner by ignoring the totality of the evidence and by exhibiting a lack of impartiality towards the applicants;
(b) He failed to reasonably assess the applicants' humanitarian application in its totality;
(c) He failed to consider the best interests of Steven Kim, the child of Mr. and Ms. Kim.
3. Whether the PCDO officer, whose opinion was relied on by the immigration officer, erred in law in making the determination that Mr. And Ms. Kim would not face a risk on return to Korea by misunderstanding the nature of their fear, misinterpreting and ignoring the overwhelming weight of the evidence to the contrary?
4. Whether the PCDO officer, whose opinion was relied on by the immigration officer, erred in law in making the determination that Mr. And Ms. Kim would not be at risk of extreme sanctions in Korea, by applying an erroneous analysis of the equivalency of the criminal law in Canada and in Korea?
5. Whether the immigration officer breached the duty of fairness by obtaining a second negative risk assessment specific to these applicants and relying on it without providing the applicants with notice of its contents and an opportunity to answer it?
Therefore, a serious issue to be tried has been shown by the applicants.
Irreparable Harm
[9] I am satisfied that the applicants would suffer irreparable harm. The parents would lose their business in Canada and would likely face poor conditions when incarcerated prior to any trial. The applicant, Steven Myung Joon Kim would lose his last year of high school and thus be unable to attend university the following year.
Balance of Convenience
[10] I find that the balance of convenience favours the applicants in that the determination of the judicial review application will not cause an excessive delay to the respondent. If the applicants are removed and then gain admission to Canada, they will have nothing to come back to as their business will be gone.
[11] The applicants' motion is granted.
ORDER
[12] IT IS ORDERED that the removal order issued against the applicants is hereby stayed until their application for leave for judicial review is denied or if leave is granted for judicial review, then until the application for judicial review is finally disposed of by the Court.
"John A. O'Keefe"
J.F.C.C.
Halifax, Nova Scotia
March 27, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-879-01
STYLE OF CAUSE:SAM RACK KIM, JUNG YUL KIM and
STEVEN MYUNG JOON KIM
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MONDAY, MARCH 19, 2001
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
APPEARANCES:
Ms. Barbara Jackman
FOR APPLICANT
Ms. Amina Riaz
FOR RESPONDENT
SOLICITORS OF RECORD:
Jackman, Waldman & Associates
281 Eglinton Avenue East
Toronto, Ontario M4P 1L3
FOR APPLICANT
Department of Justice
Ontario Regional Office
130 King Street West
Toronto, ON M5X 1K6
FOR RESPONDENT
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20010327
Docket: IMM-879-01
Neutral Citation: 2001 FCT 249
BETWEEN:
SAM RACK KIM, JUNG YUL KIM, and
STEVEN MYUNG JOON KIM
Applicant
- and -
THE MINISTER OF CITIZENSHIP &
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER