Judgments

[1993] 2 F.C. 199

IMM-1212-93

Sukhjinder Singh Bal, Kanwar Harpinderdeep Singh Bal, Kanwar Balram Singh Bal (Applicants)

v.

Minister of Employment and Immigration (Respondent)

Indexed as: Bal v. Canada (Minister of Employment and Immigration) (T.D.)

Trial Division, Noël J.—Vancouver, April 5 and 7, 1993.

Citizenship and Immigration — Judicial review — Federal Court jurisdiction — Whether jurisdiction to stay removal order pending resolution of application for leave to commence judicial review proceedings against refusal to allow application for landing from within Canada, where validity of order not in dispute — Conflicting Federal Court case law on matter — Where jurisdiction issue unresolved and in interest of justice relief be granted, uncertainty resolved in favour of party seeking relief.

Federal Court jurisdiction — Trial Division — Whether jurisdiction in Court to stay execution of removal order pending resolution of application for leave to commence judicial review proceedings against refusal to allow application for landing from within Canada, where validity of order not in dispute — Conflicting Federal Court Trial Division case law on matter and issue as yet unresolved by Court of Appeal — Where question of jurisdiction to grant relief unresolved and in interest of justice relief be granted, uncertainty to be resolved in favour of party seeking relief.

Two of the applicants are Indian children aged 10 and 16 who were adopted in Canada, in November 1992, by the third applicant, their natural uncle, a Canadian citizen. A conditional deportation order was issued against the children in July 1992 for having entered Canada by fraudulent or improper means. After the adoption order was issued in November 1992, the uncle sponsored an application to have the children’s application for permanent residence processed from within Canada, alleging humanitarian and compassionate grounds. The request was denied and the applicants were advised that the children would be removed and deported in April 1993. This was a motion for an interim stay of the deportation order pending the outcome of the leave application against the refusal to allow the children to apply for landing from within Canada. This raised the question as to whether the Federal Court has jurisdiction to issue a stay of a removal order in circumstances where the validity of the order is not in dispute. There is conflicting Federal Court Trial Division case law on this point.

Held, the motion should be granted.

Numerous attempts to contact the children’s natural parents and relatives in India have been unsuccessful. There would therefore be no one to receive the boys or care for them in India if they were deported.

If the Court has jurisdiction to do so, the deportation order should be stayed since the three-part test (irreparable harm, balance of convenience and serious issue to be tried) enunciated by the Court of Appeal in Toth v. Canada (Minister of Employment and Immigration) was met.

Where there is an open question as to jurisdiction to grant a relief, and it is apparent that it would be in the best interest of justice that the relief be granted, then the uncertainty should be resolved in favour of the party seeking the relief. Those Trial Division judges who have assumed jurisdiction to grant a stay must be assumed to be right unless and until the Court of Appeal decides otherwise.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Immigration Act, R.S.C., 1985, c. I-2, s. 114(2).

CASES JUDICIALLY CONSIDERED

APPLIED:

Toth v. Canada (Minister of Employment and Immigration) (1988), 6 Imm. L.R. (2d) 123; 86 N.R. 302 (F.C.A.).

REFERRED TO:

Ali v. Canada (Minister of Employment and Immigration), 92-T-1647, Strayer J., order dated 17/11/92, F.C.T.D., not yet reported; Paul v. Canada (Minister of Employment and Immigration), 93-T-86, Noël J., order dated 29/1/93, F.C.T.D., not yet reported; Seegobin v. Canada (Minister of Employment and Immigration), 93-T-48, Noël J., order dated 29/1/93, F.C.T.D., not yet reported; Petit v. Canada (Minister of Employment and Immigration), IMM-352-93, Reed J., order dated 28/2/93, F.C.T.D., not yet reported; Hamilton v. Canada (Minister of Employment and Immigration), [1991] 1 F.C. 3; (1990), 11 Imm. L.R. (2d) 255; 36 F.T.R. 167 (T.D.); Khan v. Canada (Minister of Employment and Immigration), 92-T-1311, MacKay J., order dated 6/11/92, F.C.T.D., not yet reported; Hosein v. Canada (Minister of Employment & Immigration) (1992), 17 Imm. L.R. (2d) 125 (F.C.T.D.).

MOTION for interim stay of two removal orders, where the validity of the orders is not in dispute, pending the outcome of a leave application against the refusal to allow the applicants to apply for landing from within Canada. Motion granted.

COUNSEL:

Darryl W. Larson for applicants.

Wayne Garnons-Williams for respondent.

SOLICITORS:

Larson, Zutter, Vancouver, for applicants.

Deputy Attorney General of Canada for respondent.

The following are the reasons for order rendered in English by

Noël J.: The only order potentially under attack in the application for leave to seek judicial review is the decision of an immigration officer refusing special treatment on humanitarian and compassionate grounds. The applicants seek a stay of a removal order pending the determination of that application. This raises a question which has been the subject of conflicting decisions, that is whether this Court has the jurisdiction to issue a stay of a removal order in circumstances where the validity of the order is not in dispute.

The applicants, Kanwar Harpinderdeep Singh Bal and Kanwar Balram Singh Bal (herein “the children”) are aged 10 and 16. Applicant Sukhjinder Singh Bal is their natural paternal uncle and is also their adoptive father by virtue of an adoption order issued by the Supreme Court of British Columbia on November 25, 1992. He is a Canadian citizen who has resided in Canada since 1972 and is the natural father of three children.

The affidavit evidence indicates that the children, who are citizens of India were brought to Canada some three years ago by their uncle. They were brought to Canada by their uncle, because their natural father had received demands for money from members of the All Sikh Student Federation coupled with threats against the children’s lives. Upon their entry into Canada the children’s citizenship was not disclosed and the immigration officer wrongly assumed them to be their uncle’s children. Shortly thereafter the uncle reported the children’s entry into Canada at the Immigration Office in Nanaimo, British Columbia. Notices of inquiry on grounds alleging that they had entered Canada by fraudulent or improper means were issued.

The allegation that the children had entered Canada through fraudulent means was initially dismissed further to an immigration inquiry held on May 10, 1991. That decision was appealed by the Minister and reversed by the Immigration Appeal Division. As a result, a conditional deportation order was issued against the children on July 10, 1992. An application for leave to appeal that decision was dismissed by the Federal Court of Appeal on October 8, 1992.

While these proceedings were unravelling, the uncle also launched a Convention refugee status claim on the children’s behalf. The claim was initially successful. The Adjudicator and the member of the Immigration and Refugee Board found that there was a credible basis to their claim and referred the matter to a full hearing. However, by a decision rendered on April 23, 1992 the Refugee Determination Division held them not to be Convention refugees. An application for leave to appeal that decision was dismissed by the Federal Court of Appeal on June 25, 1992.

The uncle then petitioned the Supreme Court of British Columbia for an order of adoption. The affidavit of the uncle states that this was done “in hopes that I would be able to keep them safe here in Canada as my sons.” The order for adoption was issued on November 25, 1992.

The uncle then sponsored an application to have the children’s application for permanent residence processed from within Canada under subsection 114(2) of the Immigration Act [R.S.C., 1985, c. I-2], alleging humanitarian and compassionate grounds.

That request was denied without reasons. By letter dated March 11, 1993, applicants were advised that the children would be removed and deported to New Delhi on the morning of April 6, 1993.

The affidavit evidence indicates that:

1) Numerous attempts have been made by the uncle to contact the children’s “natural parents” without success. They are believed to be in hiding from Sikh extremists and their whereabouts remain unknown.

2) None of the boys’ family remain in their village of origin because of terrorist threats by Sikh extremists; and the uncle has been unable to contact any of the children’s relatives.

3) There will be no one to receive the boys or care for them in India if they are deported.

The motion before me is for an interim stay of the deportation order pending the outcome of the leave application against the respondent’s refusal to allow the children to apply for landing from within Canada. It was heard on short notice on April 5, 1993. Counsel for the respondent undertook not to execute the deportation order pending the outcome of this application.

This is a situation where this Court, if it has jurisdiction to do so, ought to stay the deportation order as the three-part test enunciated by the Court of Appeal in Toth v. Canada (Minister of Employment and Immigration) (1988), 6 Imm. L.R. (2d) 123 is clearly met.

Quite obviously, irreparable harm could result from deporting the children in circumstances where no arrangements have been made to insure their care and custody in New Delhi on arrival.

As to the balance of convenience, it is quite plain that it weighs in favour of the applicants. The potential disruption to the children’s lives if they are deported in the circumstances described above is beyond measurement, whereas the detriment to the respondent and the public in delaying the execution of the deportation order, while serious, cannot conceivably outweigh the impact of the execution of the order on the children. Furthermore, the children have been in this country for some three years. The additional time which would expire between now and the time at which the leave application would be determined is, by contrast, minimal.

Finally, from the limited material before me, it is apparent that the leave application raises a serious issue. From a memorandum drafted by the immigration officer who made the negative recommendation, it appears that she based her decision essentially on two grounds namely that:

1) The children were willing participants in a scheme developed by their father and uncle to bring them to Canada; and

2) The file suggests that this may be an adoption of convenience.

As to the first ground, I believe a serious question arises as to whether the alleged “guilty mind” of the children, who were aged 7 and 13 at the time of their entry into Canada, is a proper consideration. As to the second ground, a serious question arises as to whether the formal order of adoption issued by the Supreme Court of British Columbia can be looked upon as a procedure of convenience where the adoptive parents have had the care and custody of the children for over three years, and the adoption order merely formalizes a pre-existing parental relationship. Finally, contrary to the policy guidelines set out in 15 2.11(5) of the Immigration Manual, it appears as though the immigration officer failed to take any account of the children’s best interests in reaching her decision.

I, and others, have previously held that this Court does not have the jurisdiction to issue a stay in the circumstances of this case.[1] However, other judges of this Court have expressed the opposite view.[2] There is obviously some uncertainty as to whether or not this Court has jurisdiction to stay the deportation order where the validity of the order is not in dispute. If I could, I would order a stay of the deportation order pending the determination of the jurisdictional issue by the Court of Appeal. I would do so because, if I have the discretion to grant a stay, this is clearly a case where it ought to be exercised and it would be in the interest of justice to preserve the status quo pending the determination of the issue. However, I have been unable to identify any procedural means by which this issue can be submitted to the Court of Appeal in this instance, and indeed, it may be that the question is wholly beyond the purview of the Court of Appeal.

In these circumstances, it is incumbent upon the members of this Court to insure that there is some consistency in the manner in which fundamental issues going to the jurisdiction of the Court are dealt with. Where there is an open question as to the jurisdiction to grant a relief, and it is apparent that it would be in the interest of justice that the relief be granted, then I believe that the uncertainty should be resolved in favour of the party seeking the relief. To do otherwise would deprive a party of a remedy on the necessary assumption that those who have assumed jurisdiction to grant it were wrong. I believe that the contrary assumption must be made unless and until the Court of Appeal decides otherwise.

I will therefore stay the execution of the removal orders issued against the children pending the disposition of their leave application and, if leave is granted, until final disposition of their judicial review application.

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