Date: 20010726
Docket: IMM-3449-01
Neutral citation: 2001 FCT 830
BETWEEN:
HELEN YANG GUO
ADA ZHANG
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.
Background
[1] Helen Yang Guo and her 8 year old daughter, Ada Zhang, both citizens of Dominica and formerly citizens of China (the "Applicants") seek an interim stay, pending the disposition of their underlying application for Leave and Judicial Review, (the "application") of their removal from Canada based on a July 12th, 2001 direction to report for removal on July 27th, 2001 issued by Immigration Officer, John Panteleit (the "Immigration Officer" or the "Removal Officer").
[2] The Applicants became citizens of Dominica when Helen Yang Guo's ex-husband, now deceased, invested money in that country. The family came to Canada in August 1996 as tourists. They divorced in July of 1999 after separating in December 1998. On September 28th, 1999 she married Roger Lee, a Canadian citizen.
[3] Helen Yang Guo states in her affidavit that in December 1999 she signed an application for permanent residence with her husband sponsoring her and invoked humanitarian and compassionate grounds to justify inland processing.
[4] That application was not filed with Citizenship and Immigration Canada until February 1st, 2001 because the Applicants had made a refugee claim which was dismissed in early 2001.
[5] On June 5th, 2001, Helen Yang Guo, accompanied by her husband attended a pre-removal interview with the Immigration Officer who set a date of July 27th, 2001 in order to let her daughter finish school and give them time to get their financial affairs in order. He had been informed of the H & C application.
[6] The Applicants retained new counsel who on June 28th, 2001 requested a deferral pending the determination of the outstanding H & C application and also attaching a psychiatric report.
[7] The Immigration Officer on July 6th, 2001 decided not to defer the removal.
Applicants' Arguments and Analysis
[8] Counsel for the Applicants argues the Application for Leave and for Judicial Review raises a serious issue to be tried in the context of an outstanding H & C application that involves determining the extent of a Removal Officer's discretion to defer removals and the reasonableness of the Removal Officer's decision in this case not to defer. Counsel for the Applicants submits the Removal Officer's discretion does include the discretion to defer removal until an H & C application is decided referring to section 48 of the Immigration Act. She argues the insertion of the words "reasonably practicable" confers a discretion on Removal Officers and imposes on the officer the duty to act reasonably in the timing of the execution of the removal order, and adds there is nothing about the wording of section 48 which stipulates that the discretion of the Removal Officer is highly circumscribed or limited. She argues that the only limit on the Removal Officer's discretion in the legislation is the element of "reasonableness".
[9] The arguments advanced by counsel for the Applicants must be rejected because they are contrary to the well settled case law of this Court. There can be no question a Removal Officer under section 48 of the Immigration Act has some discretion in discharging the statutory mandate to execute a removal order as soon as reasonably practicable. However, in accordance with the intent of Parliament, that discretion is limited to considerations related the timing of the enforcement of the removal order.
Moreover, in and of itself, an outstanding H & C application is not the basis for granting a stay but undue delay in processing may be a ground for a stay. These principles have been established in cases such as Pavalaki v. Canada (Minister of Citizenship and Immigration) [1998] F.C.J. No. 338, Cuff v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 1865, Simoes v. Canada (Minister of Citizenship and Immigration) [2000] F.C.J. No. 936, Wang v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 295 and Sklarzyk v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 579.
[10] I do not have any evidence before me which would establish undue delay in processing the H & C application in this case.
[11] I have examined the psychological assessment of the Applicants dated June 28th, 2001. It is of little assistance to the issue at hand and does not affect the reasonableness of the Immigration Officer's decision not to defer.
[12] I conclude the Applicants have not shown a serious issue to be tried and as a result this stay application is dismissed. I reject the suggestion by counsel for the Applicants that I separate mother and child by staying the child's removal.
"François Lemieux"
J.F.C.C.
Toronto, Ontario
July 26, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-3449-01
STYLE OF CAUSE: HELEN YANG GUO
ADA ZHANG
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
DATE OF HEARING: MONDAY, JULY 23, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: LEMIEUX J.
DATED: THURSDAY, JULY 26, 2001
APPEARANCES: Ms. Chantal Desloges
For the Applicants
Mr. Marcel Larouche
For the Respondent
SOLICITORS OF RECORD: GREEN AND SPIEGEL
Barristers & Solicitors
121 King Street West
Suite 2200, P.O. Box 114
Toronto, Ontario
M5H 3T9
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
FEDERAL COURT OF CANADA
Date: 20010726
Docket: IMM-3449-01
BETWEEN:
HELEN YANG GUO
ADA ZHANG
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
Date: 20010725
Docket: IMM-3449-01
Toronto, Ontario, Wednesday, the 25th day of July, 2001
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
HELEN YANG GUO
ADA ZHANG
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
For reasons filed, stay application is dismissed.
"François Lemieux"
J.F.C.C.
Email this Content