Date: 20081105
Docket: IMM-4770-08
Citation: 2008
FC 1239
Vancouver, British
Columbia,
November 5, 2008
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
LUIS
FERRERA DIAZ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
I. INTRODUCTION
[1]
This is an
application for a stay of deportation to be executed Friday, November 7, 2008.
The deportation follows from a failed PRRA and H&C application decided by
one and the same officer.
II. BACKGROUND
[2]
The facts
are relatively straightforward. The Applicant is a citizen of Honduras with a somewhat checkered
past of a series of criminal convictions in Canada and the United States. The last serious conviction
was over 10 years ago.
[3]
The
Applicant and his Canadian-born wife are effectively the parents or guardians
of the Applicant’s niece. The niece’s father (the Applicant’s brother) is
awaiting trial on a child molestation charge. The mother was killed in a car
accident.
[4]
The sole
issue before the Court is whether a stay should be granted because of the
circumstances of the niece. Arguments regarding the Applicant and the validity
of the H&C decision are for another day and another judge.
III. TRIPARTITE TEST
[5]
The law on
stays is well established in Toth v. Canada (Minister of Employment and Immigration), [1988] 86 N.R. 302 (F.C.A.).
For the reasons to follow, I concluded that the Applicant has met the
requirements for a stay.
IV. SERIOUS ISSUE
[6]
In
considering the best interests of the child, the Officer concluded that there
were three adults involved in parenting the child – the Applicant, the child’s
father and the Applicant’s wife. Mention is made but no analysis performed on
the role of the Applicant’s two sisters who live in Canada.
[7]
While the
Officer would not speculate on what could happen to the child’s father and his
criminal charges, the Officer concluded that there were a sufficient number of
persons engaged in her care and adequate options to safeguard the child.
[8]
In the
absence of the Applicant due to deportation, the only other persons to care for
the child (no evidence of the involvement of children’s services or similar
organizations) is a person charged with child molestation and the Applicant’s
wife. The Applicant’s wife is faced with the choice of remaining in Canada or accompanying her husband.
The Officer apparently assumed that the wife would remain in Canada and continue to care for her
husband’s niece.
[9]
I am of
the view that the Applicant has established a serious issue concerning the
reasonableness of the conclusions regarding best interests of the child. There
is little consideration of what happens to the child if any of the assumptions
are not accurate. The wife has since filed evidence indicating her intention to
follow her husband – a matter which was not before the Officer but one that
cannot be ignored if best interests of the child are to be more than
formalistic.
V. IRREPARABLE HARM
[10]
The harm
posed, the abandonment of the child, is a realistic concern. Unlike other
deportation cases involving children where one parent stays in Canada or both leave taking the
child, this usual consequence of deportation is not assured.
[11]
Neither
the Applicant nor his wife can take the child with them since neither has legal
status over the child.
[12]
In Sowkey
v. Canada (Minister of Citizenship and
Immigration),
2004 FC 67, I found irreparable harm in a similar circumstance where the harm
occasioned by deportation was not the natural consequences.
VI. BALANCE OF
CONVENIENCE
[13]
When
weighing the interests of a child over the administrative convenience of
deportation, the result must generally favour the child. This is particularly
so where the issue is a stay for a limited period of time.
[14]
Courts
have a special role to play in protecting children. A short delay until the
leave application is considered also allows time for a further consideration of
the options available for the care of this 3-year old child.
VII. CONCLUSION
[15]
Therefore,
the stay of deportation is granted until the final disposition of the leave and
application for judicial review.
ORDER
THIS COURT ORDERS that the stay of deportation is
granted until the final disposition of the leave and application for judicial
review.
“Michael
L. Phelan”
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