Éyang-Minko v. Canada ( Minister of Employment and Immigration )
92-T-1654
MacKay J.
11/5/93
8 pp.
Application to stay execution of deportation order -- Applicant arriving in Canada from Gabon on diplomatic posting in 1989 -- Serious health problems (kidney transplant recipient) and good experience with Canadian health care compared with perceived inadequate care in Gabon inducing her to seek to remain in Canada when diplomatic status revoked -- Convention refugee claim denied by first level panel and removal order issued -- Applied for landing from within Canada on compassionate and humanitarian grounds -- Interviewed by immigration officer and application denied by letter from departmental manager -- Application for leave to commence judicial review proceedings commenced, but not pursued after advised removal deferred pending further clarification of medical facilities in Gabon -- Decision to execute removal order on specified date may be stayed pursuant to Federal Court Act, s. 18.2 -- Applicant must establish grounds warranting stay in terms of test in Toth v. Minister of Employment and Immigration (1988), 86 N.R. 302 (F.C.A.) -- Arguable issues raised about process by which discretion exercised in humanitarian and compassionate review, including whether immigration officer who interviewed applicant made any decision, since letter conveying decision written by departmental manager whom applicant had never met; no written record of assessment of quality of treatment in Gabon; whether respondent, having delayed removal while doubt about quality of treatment, could now in fairness remove her while continuing reasonable doubt; removal decision made in absence of evidence about quality of health care in Gabon -- Irreparable harm to applicant if now removed and quality of treatment inadequate -- Balance of convenience favouring grant of stay -- Federal Court Act, R.S.C., 1985, c. F-7, ss. 18.2 (as am. by S.C. 1990, c. 8, s. 5), 51 -- Immigration Act, R.S.C., 1985, c. I-2, s. 114(2).