Owusu v. Canada (Minister of Citizenship and Immigration), 2003 FCA 470 (CanLII)
http://canlii.ca/t/1kz2g
• There was an appeal to the FCA on the basis of a certified question from the FC judge who denied JR of a negative H&C application
• This was a stay of removal application in order that the applicant remain in Canada while the appeal of the negative JR took place
• Serious issue: a question was certified in the appeal to the FCA.
• [3] As for irreparable harm, I do not believe that it is accurate to say that removal will not affect the applicant’s appeal, and, if he is successful, the reconsideration of his H & C application. While the effect of removal on the appeal will be minimal, if he is successful, it will be significant on his H & C application. The basis for the finding of reviewable error is the interests of the applicant’s children, an issue raised by the fact that his employment in Canada makes it possible for him to support them. If he is removed, and is no longer supporting them from Canada, his grounds for receiving favourable consideration of his H & C application are significantly undermined. The effect would be to deprive him of substantially all of the benefits of his appeal if he is successful. This constitutes irreparable harm.
[4] As for balance of convenience, I am very conscious of the obligation imposed on the Minister to execute removal orders. In the circumstances of this case, where the date for the hearing of the applicant’s appeal has been fixed, and that hearing is imminent, removal following the hearing of the appeal strikes me as being “as soon as reasonably practicable”.
• This case involves judges of the FCA taking account of the best interests of children living abroad. Father was supporting them with Canadian employment. His grounds for receiving favourable consideration of the H&C would be undermined if he were removed.
Owusu cited in other case-law:
• Rizvi v. Canada (Citizenship and Immigration), 2009 FC 463 (CanLII), <http://canlii.ca/t/23jt6> :
o [38] This case can be distinguished from Owusu v. Canada (Minister of Citizenship and Immigration), 2003 FCA 470 (CanLII), 139 A.C.W.S. (3d) 915); in that case, the irreparable harm stemmed from the fact that employment in Canada was necessary to support his children who were not living here. That is not the case at bar where, in fact, there is insufficient evidence to conclude that the Applicants, some of whom are highly educated, cannot find employment in Pakistan.
• Kanagasabapathy v. Canada (Minister of Citizenship and Immigration), 2004 FC 441 (CanLII), <http://canlii.ca/t/1gt61>
o On the issue of financial harm having the potential to be irreparable for an applicant’s family see: Sivananthan v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 199 (T.D.)(QL), Owusu v. Minister of Citizenship and Immigration (December 8, 2003), 2003 FCA 470 (CanLII)
• Palka v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 165 (CanLII), <http://canlii.ca/t/1wtjd>
o [16] The Palkas rely on Owusu v. Canada (Minister of Citizenship and Immigration), 2003 FCA 470 (CanLII), to support their position on this point. However, the facts of Owusu were unusual and very different from those in the present case: Mr Owusu’s H&C application was based on his ability to continue to send money to support his child in Ghana from his employment in Canada.
• Natoo v. Canada (Public Safety and Emergency Preparedness), 2007 FC 402 (CanLII), http://canlii.ca/t/1r8fd at para 37
o f) The loss of his H&C application. It is submitted that the Applicant’s H&C application would be rendered nugatory if he is removed, as his H&C application is premised on his establishment in Canada through his business, and the financial support that he provides to his family from that income. If he is removed, the business would be lost, and his establishment in Canada fundamentally undermined. (Motion Record, pp. 8-9, 20; Owusu v. Canada (Minister of Citizenship and Immigration), 2003 FCA 470 (CanLII), [2003] F.C.J. 1976 (QL).)