Date: 20000609
Docket: IMM-2088-00
OTTAWA, ONTARIO this 9th day of June 2000.
BEFORE: The Honourable Justice Dolores M. Hansen
BETWEEN:
ZINAIDA DENISKINA BEKKER
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
c/o Justice Department, Complexe Guy Favreau,
200 West René-Lévesque, East Tower, 5th Floor,
Montreal, Quebec, H2Z 1X4
| Respondent. |
REASONS FOR ORDER AND ORDER
Delivered orally by conference call on Friday, June 9th 2000.
[1] The applicant has applied for leave and judicial review of the decision of the Minister of Citizenship and Immigration dated May 10, 2000 denying the applicant"s request for a Ministerial Permit to remain in Canada.
[2] This is now a motion for an order staying the removal of the applicant until the application for leave has been determined and if granted, until the disposition of the judicial review. Initially, the deportation was scheduled to occur on May 16, 2000. On May 12, 2000, the hearing of the motion to stay the execution of this removal order was adjourned to May 25, 2000. The Court was informed that the removal had been rescheduled to June 1, 2000. As there was insufficient time to complete the hearing of the matter, it was adjourned to June 5, 2000. At the conclusion of the hearing, the Court indicated that it would give its ruling orally on this date.
[3] The applicant is in an advanced stage of breast cancer which has resulted in related complications of her spine, ribs, axilla, skin, lungs and leg. She is currently undergoing chemotherapy treatment.
[4] Israel is the country to which she is being deported. Extensive arrangements have been made by the respondent to insure that her medical needs will be addressed both during the trip and upon her immediate arrival in Israel.
[5] As stated by the Federal Court of Appeal in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 on a motion for a stay the applicant must establish (1) there is a serious issue to be tried; (2) she will suffer irreparable harm if the relief is not granted; and (3) the balance of convenience favours granting the stay. Contrary to the applicant counsel"s assertion in his Memorandum of Fact and Law, the test is conjunctive requiring the applicant to satisfy the Court with respect to all three branches of the test.
[6] On the serious issue branch of the test, the Court must be satisfied that the underlying application is neither frivolous nor vexatious. The applicant outlined to a number of issues to be raised on the judicial review including that the manner in which the removal is being carried out violates her section 7 Charter rights and that the Minister based her decision of May 10, 2000 on an erroneous finding of fact. With respect to this later issue, in the letter of refusal the Minister stated: "Immigration officials in Tel-Aviv have informed me that an oncologist will be available to Mrs. Bekker when she returns to Israel, and that adequate treatment for breast cancer is available to her there. I am also aware of the support that family members in Israel can provide to her. To that end, I understand that Mrs. Bekker"s daughter who is presently in Canada temporarily will be returning to Israel to assist her mother during her recovery."
[7] It is clear from the uncontradicted evidence before the Court that the applicant has no family in Israel nor does her daughter have any intention at the present time of moving to Israel. Given the Minister"s stated reliance on this erroneous fact which was central to her decision, I am satisfied that the issue is neither frivolous nor vexatious and that the applicant has satisfied this branch of the test.
[8] The affidavit of a psychologist at the hospital where the applicant is being treated was filed in support of her argument as to irreparable harm. Appended to the affidavit is the report of the psychological assessment she conducted of the applicant. In the conclusion, she states:
| Mrs Bekker has a diagnosis of metastatic breast cancer. The course of her illness was complicated and is described by her oncologist, Dr. Victor Sandor. The client is currently under active chemotherapy treatments and requires ongoing oncological and family care. In fact, her family"s physical help and encouragement is an integral part of her treatment. Visits from friends, interest in her well being expressed by her friends, neighbours and other members of the Russian speaking community, presence of her grandchildren help her to cope with the painful and demoralizing illness. One could see her family and friends as part of the treatment team and participation of family is strongly encouraged by treatment guidelines. The Standards in Psychological care in Oncology as presented by the Canadian Association of Psychological Oncology (1999) stress the importance of involving families in the treatment of cancer patients. Fighting cancer requires as much psychological as physical strength. Presently, the source of her strength is a good rapport with her medical team and community and environmental support. Mrs Bekker will not be able to cope with her physical and psychological pain alone in a country that might provide good medical care but cannot provide the other ingredients of good care: family and friends. Her will to live, her coping skills, her hope will not be present without the involvement of her current, very supportive environment. It is my strong belief that taking her away from her present medical and family care will not only shorten her life, but will make the last years of her life painful and lonely. |
[9] Although the evidence discloses that the applicant will have access to high quality medical care should she be deported to Israel, on the basis of the evidence of the psychologist and the literature which has been placed before the Court as to the significant negative medical consequences which flow from a deterioration in the psychological condition of a person undergoing cancer treatment, I am satisfied that the irreparable harm branch of the test has been met.
[10] Where the applicant has been able to satisfy the Court on the first two branches of the test, then the balance of convenience weights in favour of the applicant.
[11] For these reasons, the application for the stay of the deportation is granted.
ORDER
IT IS HEREBY ORDERED THAT the removal of the applicant be stayed until leave has been determined and if granted, until disposition of the judicial review.
"Dolores M. Hansen"
J.FC.C.