Martinez v. Canada (Minister of Citizenship and Immigration), 2003 FC 1341

Date: 20031113

Docket: IMM-8572-03

Citation: 2003 FC 1341

BETWEEN:

                                                       JULIO ROMERO MARTINEZ

                                                                                                                                                       Applicant

                                                                              - and -

                                                  THE MINISTER OF CITIZENSHIP

                                                              AND IMMIGRATION

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

                                                    ON APPLICANT'S MOTION FOR A

                                                         STAY OF A REMOVAL ORDER

SIMPSON J.

[1]                 The Applicant has brought an application for leave and judicial review of a decision of a removals officer dated October 28, 2003, (the "Decision"). In that Decision, the officer refused to defer the Applicant's removal, which had been scheduled for November 15, 2003. In this context, the Applicant has moved for a stay of his removal pending the disposition of his outstanding application for judicial review and his outstanding application for landing from within Canada on humanitarian and compassionate grounds (the "H & C Application").

[2]                 An order was made on November 12, 2003, which granted the stay. These are the reasons for that order.

The Facts

[3]                 The Applicant, a citizen of the Dominican Republic, made a refugee claim on his arrival in Canada in June 2001. It was denied on credibility grounds on July 26, 2002, and no judicial review was sought.

[4]                 On November 23, 2002, the Applicant married a citizen of Uruguay who is a permanent resident of Canada (the "Wife"). She had a Canadian-born daughter from a previous relationship. That child is now nearly three years old and has never had contact with her biological father.

[5]                 A pre-removal risk assessment application was filed in June 2003 and was denied at a pre-removal interview on October 22, 2003. The Applicant has co-operated with the Respondent and has purchased a ticket for departure on November 14, 2003.

[6]                 The Applicant and his Wife had a son on December 17, 2002. The Applicant currently supports his Wife and both children and plays a parental role for both children.

[7]                 The Applicant's H & C Application was filed on August 27, 2003, and remains outstanding.

Serious Issue

[8]                 Section 3(3)(f) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "IRPA"), provides that:

[9]                 In this context, I have been asked to consider the relevance of the United Nation's Convention on the Rights of the Child, GA Res. 44/25, UN GAOR, 20 November 1989 (the "Convention"). I note that the Convention deals with the human rights of children and, to paraphrase, it recognizes in its preamble that, inter alia, childhood is entitled to special care and assistance, the family should be protected as it is the natural environment for the growth and well-being of children and children should grow up in a family environment.

[10]            In my view, the following articles are relevant:

Article 3(1): In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

Article 7(1): The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.

Article 9(4): Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.

                                                                                                                                 [My emphasis]

[11]            Article 9(4) of the Convention recognizes that there will be situations in which children are separated from their parents by state actions including deportations and I have found nothing in the Convention which prohibits a parent's removal. In other words, in spite of the Convention, Canada is entitled to separate children from their parents in situations in which the parents have no legal status in Canada.

[12]            I now turn to Article 1 of the Convention and note that, although judges have differed about the scope of a removals officer's discretion to defer a removal, they have generally agreed (i) that a removals officer is not required to conduct a full scale humanitarian and compassionate review and (ii) that, in most circumstances, a pending H & C application will not justify the deferral of a removal. That said, the question in this case is whether, when the father is being removed and the children are remaining in Canada, should the removals officer defer the removal pending the outcome of the H & C Application in order to give effect to Canada's obligations under Article 1 of the Convention? In my view, the answer is "yes" for the reasons which follow.

[13]            Section 3(3)(f) of the IRPA has incorporated the Convention into our domestic law to the extent that the IRPA must be construed and applied in a manner that is consistent with the Convention. In my view, it is contrary to Article 1 of the Convention to use the provisions of the IRPA to separate the Applicant and his children before a decision is made on the H & C Application. This is so because it is only during the assessment of that application that the best interests of the children can be fully addressed and treated as a primary consideration. I have therefore concluded that there is a serious issue in this case. It is whether the existence of the undecided H & C Application is a bar to the removal of the Applicant because the completion of the H & C assessment is required to fulfill Canada's Convention obligations.

Irreparable Harm

[14]            The H & C Application, which was filed less than three months ago, indicated that the Wife had long-term employment as a secretary and, although then on maternity benefits, planned to return to work. However, the H & C Application also indicated that the Applicant was the main economic provider for the family and that, if his Wife were forced to look after the children alone, they would suffer "material deprivation." In stark contrast, the affidavits filed for this proceeding paint a picture of the Wife not working, without any job prospects, unable to qualify for welfare (because of an outstanding support commitment from her former husband) and forced to face an itinerant life of destitution with her children.

[15]            The affidavits of the Applicant and his Wife in this proceeding indicate that, on a salary of $2,500 per month, the Applicant has paid the rent and 70% of the household expenses while his Wife has been on maternity benefits. However, there is no evidence about her former salary as a secretary and no explanation for her lack of a job and job prospects after a long career. There is also no evidence to support her claim that she is not eligible for welfare and no evidence about whether the Applicant's two brothers, who live in the Vancouver area and who supported the H & C Application, are able to help the Wife. Finally, there is no evidence about the Applicant's ability to contribute to the support of his family while he is in the Dominican Republic.

[16]            I do not accept the Wife's evidence that she and her children will be "destitute and itinerant" if the Applicant is removed given that, prior to her marriage to the Applicant, she supported herself and her daughter. However, I do accept that she and the children may face some material hardship once the Wife becomes a single parent with two children.

[17]            As well, there is no doubt that the Wife and the daughter (who is almost three years old) will be distressed if the Applicant is removed. However, there is no medical evidence to suggest that the impact on the daughter will be disproportionate or aggravated by any circumstances. In particular, there is no evidentiary support for the Applicant's suggestion, that she will become "aggressive" with her baby brother. Further, since she has never known her biological father, it is hard to credit the Applicant's concern that she will be deprived of a father figure "again".

[18]            The issue is whether the economic hardship and the emotional distress which will be experienced by the Wife and daughter constitute irreparable harm. In a traditional pre-Convention analysis this question would probably have been answered in the negative on the basis that the inevitable financial and emotional consequences of a removal are not irreparable harm.

[19]            However, the Convention stresses the importance of the family and states in Article 7(1) that it is a child's human right, as far as possible, to know and be cared for by his or her parents. In my view, if the IRPA is to be applied in a manner consistent with the Convention, the separation of a parent and child by the state without a consideration of the best interests of the child would be an ongoing infringement of the child's human rights. It also seems to me that such an infringement of a human right constitutes irreparable harm

Balance of Convenience

[20]            I am of the view that the requirement to apply the IRPA in a manner that is consistent with the Convention means that, until the H & C Application is decided, the balance of convenience favours the Applicant.

Conclusion

[21]            The Applicant's removal will be stayed pending the disposition of the H & C Application.

(Sgd.) "Sandra J. Simpson"

Judge

Vancouver, B.C.

November 13, 2003

                                       FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   IMM-8572-03

STYLE OF CAUSE: JULIO ROMERO MARTINEZ

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

PLACE OF HEARING:                                   Vancouver, B.C.

DATE OF HEARING:                                     November 10, 2003

REASONS FOR ORDER:                              SIMPSON J.

DATED:                      November 13, 2003

APPEARANCES:

Shane Molyneaux                                                 FOR APPLICANT

Kim Shane                                                            FOR RESPONDENT

SOLICITORS OF RECORD:

Elgin, Cannon & Associates                                              FOR APPLICANT

Vancouver, B.C.

Morris Rosenberg                                                 FOR RESPONDENT

Deputy Attorney General of Canada