GEORGES ÉTIENNE v. NATHALIE VAN DE PUTTE, 2003 FCT 384

Date: 20030401 Docket: IMM-6714-02 Neutral Citation: 2003 FCT 384 Montréal, Quebec, April 1, 2003 Present: The Honourable Mr.

Justice Simon Noël BETWEEN: GEORGES ÉTIENNE and NATHALIE VAN DE PUTTE and XAVIER ÉTIENNE and GENEVIÈVE ÉTIENNE Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR ORDER AND ORDER [1] This is a motion for a stay of execution of a removal order scheduled for April 14, 2003, issued against the applicants that wasattached to an application for leave attacking the decision of Nicole Nappi, an immigration officer, dated December 17, 2002, whoreviewed the application for a ministerial exemption on humanitarian grounds and refused the application. [2] To assess the merit of the application for a stay, the Court must ask itself whether the judge-made criteria have been fulfilled: - the existence of a serious issue; - the existence of irreparable harm; and - the assessment of the balance of convenience. (See Toth v.

M.E.I., (FCA), 86 N.R. 302 (F.C.A.)) [3] Having heard from counsel and examined the record, I consider there are two serious issues raised by this litigation: - Given the custom and tradition of holding interviews before finalizing decisions, were the applicants right to expect such aninterview before the final decision is made? - As required by subsection 25(1) of the Immigration and Refugee Protection Act, was consideration given to public interestduring the analysis of the record and/or the final decision? [4] Furthermore, there is irreparable economic harm since the applicant Georges Étienne is currently performing contracts worthseveral hundred thousand dollars.

If the removal were to occur, it seems to me that the co-contractors would be in a precarious situationsince the performance of the contracts would be jeopardized and they would be unable to be compensated owing to the expulsion of theapplicant co-contractor. [5] Considering the record as a whole, it is my opinion that the balance of convenience lies with the applicants.

And it is in therespondent's interest that the hope of an interview, whether founded or not, be decided for the purpose of enhancing the procedure underthe assessment system. [6] The applicants asked that the affidavit of the Citizenship and Immigration admitting officer, Nicole Nappi, dated March 27,2003, be struck from the Court record because it raised facts for which they have not had an opportunity to respond and it was impossibleto examine her at such short notice.

[ 7 ] Such affidavits are common in response to applications for a stay of removal and it is often impossible for the Minister to prepare these affidavits and file them within a period that would allow an answer thereto and examination thereon. [ 8 ] In view of the decision I have reached, I do not think it is in the interests of justice to allow the request. ORDER The motion for a stay is allowed until the application for judicial review is decided and the motion for withdrawal of the affidavit of Nicole Nappi, an immigration officer, dated March 27, 2003, is dismissed.

"Simon Noël" Judge Certified true translation Suzanne Gauthier, C. Tr., LL.L. FEDERAL COURT OF CANADA TRIAL DIVISION Date: 20030401 Docket: IMM-6714-02 Between: GEORGES ÉTIENNE and NATHALIE VAN DE PUTTE and XAVIER ÉTIENNE and GENEVIÈVE ÉTIENNE Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR ORDER AND ORDER FEDERAL COURT OF CANADA TRIAL DIVISION NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET NO: IMM-6714-02 STYLE: GEORGES ÉTIENNE

and NATHALIE VAN DE PUTTE and XAVIER ÉTIENNE and GENEVIÈVE ÉTIENNE Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: March 31, 2003 REASONS FOR ORDER AND ORDER OF MR. JUSTICE SIMON NOËL DATED: April 1, 2003 APPEARANCES : Jean El Masri FOR THE APPLICANTS Édith Savard FOR THE RESPONDENT SOLICITORS OF RECORD : Jean El Masri FOR THE APPLICANTS Montréal, Quebec Morris Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada Montréal, Quebec