Seguel v. Canada (Solicitor General), 2004 FC 968

Date: 20040707

Docket: IMM-5860-04

Citation: 2004 FC 968

Ottawa, Ontario, this 7^th day of July, 2004   

PRESENT:     The Honourable Mr. Justice von Finckenstein

BETWEEN:

                          Fabian Francisco Seguel, Maria De Las Mercedes Neira,

And by their Litigation Guardian, Fabian Franciso Seguel, Franco Michel Seguel

Elias Genaro Seguel, Marcos Daniel Seguel, Alyelen Antonela Seguel,

Emilio Francisco Seguel, Matias Fabian Seguel and Alex Nahuel Seguel

                                                                                                                                        Applicants

                                                                        - and -

                                             SOLICITOR GENERAL OF CANADA

                                                                                                                                     Respondent

                                            REASONS FOR ORDER AND ORDER

                   (Delivered orally and subsequently written for precision and clarification)

[1]                This is an application for a deportation originally scheduled for July 2^nd , 2004. Upon motion dated June 30, 2004, Pinard, J. ordered that the deportation was stayed until today to allow the parties to bring the necessary documents before the Court.

[2]                The applicant is an Argentinian who fled to Canada with his wife and seven children. An eighth child was born in Canada.

[3]                The applicant alleges bad faith by the Department of Citizenship and Immigration with regards to its refusal to defer removal subsequent to it receiving from applicant's counsel a letter from an Argentinian police officer attesting to the danger that the applicant will face in Argentina.

[4]                As a result of the immigration officer's refusal to defer, a new PRRA application was filed on June 16^th, 2004.

[5]                The applicant also alleges irreparable harm if deported to the United States, asserting that he will be detained there, notwithstanding that he was not previously detained when he stayed in the US before coming to Canada.

[6]                This is a difficult case in light of the allegations of bad faith. There has also been no cross-examination on the diverging affidavits.

[7]                While I am not convinced that the applicant has met the conjunctive tripartite test in Toth v. Canada (M.E.I.) (1988), 86 N.R. 302, I am very troubled by the fact that the PRRA officer did not anywhere in her decision consider the interests of the children. Her only reference to them is as follows:

The applicants are a family consisting of a married couple with seven children. All Applicants are relying on the same evidence submitted therefore it will be dealt with as one decision applicable to all parties. (Applicant's record page 38)

[8]                It is well established law that in the consideration of PRRA decisions, the best interest of children has to be assessed. (See Gonzalez v. Canada (M.C.I.), [2002] F.C.J. No. 671 (QL); Wu v. Canada (M.C.I.), [2002] F.C.J. No. 721 (QL)). This should take place before any deportation order is executed.

[9]                Consequently, this application for a stay will be granted until the decision in response to the new PRRA application of June 16^th, 2004 is rendered .

                                               ORDER

1.         This application for a stay is granted. No removal order against the applicants shall be executed until a decision has been rendered on the PRRA application which was filed on June 16^th, 2004.

2.         There will be no order as to costs.

"K. von Finckenstein"

                                                                                                   Judge                    

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                       IMM-5860-04

STYLE OF CAUSE: Fabian Francisco Seguel, Maria De Las Mercedes Neira, and by their Litigation Guardian, Fabian Franciso Seguel, Franco Michel Seguel Elias Genaro Seguel, Marcos Daniel Seguel, Alyelen Antonela Seguel, Emilio Francisco Seguel, Matias Fabian Seguel and Alex Nahuel Seguel

AND

SOLICITOR GENERAL OF CANADA

HEARD VIA TELECONFERENCE FROM OTTAWA AND TORONTO, ONTARIO

DATE OF HEARING:                                               JULY 7, 2004

REASONS FOR ORDER

AND ORDER :                                              von FINCKENSTEIN J.

DATED:                                                           JULY 7, 2004

APPEARANCES:

Osborne Barnwell                                              FOR APPLICANTS

Lahdan Shahrooz                                               FOR RESPONDENT

SOLICITORS OF RECORD:

Osborne G. Barnwell

Toronto, Ontario                                               FOR APPLICANT

Morris Rosenberg                                             

Deputy Attorney General of Canada                  FOR RESPONDENT