Date: 20060220
Docket: IMM-935-06
Citation: 2006 FC 230
Toronto, Ontario, February 20, 2006
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
MAMUN HOSSAIN JOARDER
SONALI AFROZ
and MAHIYA NASRIN
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant's are facing deportation from Canada to the United Stateson February 21, 2006. The underlying application for judicial review seeks to set aside the decision of a removal officer who declined to defer removal until the Applicants' humanitarian and compassionate (H & C) application has been determined. That application has been outstanding since October, 2004 and recently the Respondent requested further information in support of that request for landing. At the same time the Respondent is seeking to deport the Applicants. Caught up in the process is a two year old Canadian born child and his seven year old Bangladesh born sister.
[2] I am, of course, required to apply the tripartite test from Toth v. Canada (1988), 86 NR 302.
[3] I find that a serious issue has been raised by the material before me. Although the discretion of a removal officer is quite limited there is a requirement that the immediate interests of affected children be treated fairly and with sensitivity at this stage of the immigration process. I am not convinced that the interests of these two young children were afforded the degree of consideration required. The officer referred to the absence of any concern about schooling for the youngest child but said nothing whatsoever about the fact that the older child will be removed from school by this deportation. Furthermore, the notes supporting the decision state that the two year old child,
is a Canadian citizen, therefore is not being removed from Canada
[4] Although in simplistic legal terms this may be correct, the de facto consequence of this decision is to remove a Canadian citizen from the country. It is arguable that this is not the degree of sensitivity to the interests of the child that is required.
[5] On the issue of irreparable harm I think it noteworthy that this deportation will disrupt the family unit and their deep integration into the community (including employment, volunteering and schooling). This family has integrated very effectively and, once again, the interests of the two young children are, to my mind, sufficient to take this consideration beyond the more generic types of hardship that typically do not support a stay.
[6] While it is true that the existence of an outstanding H & C application is not, by itself, a basis for deferring a removal, the fact that this one has been outstanding for l6 months and is under active consideration lends support to the Applicant's claim to interim relief at least with respect to the balance of convenience.
ORDER
THIS COURT ORDERS that the Applicants' pending deportations from Canada are hereby stayed until their underlying application for leave for judicial review is decided and, if leave is granted, until the application is finally determined on the merits.
"R.L. Barnes"
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-935-06
STYLE OF CAUSE: MAMUN HOSSAIN JOARDER ET AL
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: FEBRUARY 20, 2006
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: BARNES J.
DATED: FEBRUARY 20, 2006
APPEARANCES BY:
John Guoba FOR THE APPLICANT
Tamrat Gebeyehu FOR THE RESPONDENT
SOLICITORS OF RECORD:
John Guoba
Barrister & Solicitor
Toronto, Ontario FOR THE APPLICANT
John H. Sims Q.C
Deputy Attorney General of Canada
Toronto, Ont. FOR THE RESPONDENT
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