Date: 20060728
Docket: IMM-3690-06
Citation: 2006 FC 934
Ottawa, Ontario, July 28, 2006
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
FEDERICO GIJONCORTES
Applicant
and
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
[1] This is a stay of removal motion by Federico Cortes (the applicant), a citizen of Mexico, pending the determination of his leave and judicial review application challenging the June 23, 2006 decision of Removals Officer Desmarais (the Removals Officer) who denied the applicant's request that his removal be deferred until his sponsored in-Canada application for permanent residence is decided.
[2] The material facts surrounding this application are:
· The applicant came to Canada on October 24, 1999 as a visitor;
· He made a refugee claim on November 1, 1999 which was refused on September 1, 2000;
· He made a pre-removal risk assessment application on July 28, 2005 which was denied on May 16, 2006;
· On June 23, 2003 the applicant met his common-law wife who is a permanent resident in Canada. Their relationship solidified in January of 2004 and has continued since;
· On October 18, 2005, a daughter Luz was born of the union;
· On May 16, 2006, the family attended a meeting with the Removals Officer. At that meeting, he was informed that an H & C application had been filed in Montreal on May 12, 2006 along with a letter from the couple's former lawyer that this application be examined before removal;
· At the May 16, 2006 meeting, that request was repeated verbally by the couple to the Removals Officer who declined it because he considered the H & C application to be one made at the last minute;
· Current counsel was retained on May 30, 2006 he forwarded that day to Citizenship and Immigration Canada (CIC), Vegreville, Alberta an inland spousal sponsorship application;
· On June 5, 2006 the couple's counsel wrote to the Canadian Border Services Agency (CBSA) asking that it exercise its discretion to defer the removal so CIC could be permitted to process the inland spousal sponsorship. He invoked the best interests of baby Luz;
· On June 19, 2006 he wrote to the Removals Officer stating he had yet to receive an answer on this deferral request; and
· On June 23, 2006 the Removals Officer replied stating, after examining the matter, he concluded this was a case where the circumstances did not justify removal be deferred. The Removals Officer's notes to the file are contained in the respondent's motion record.
[3] In my view, this stay application must be dismissed for the reason counsel for the applicant has not satisfied me on any of the three-part test which must be made out in order that a stay be issued. The applicant has not made out the existence of a serious issue to be tried, he has not demonstrated irreparable harm and the balance of convenience does not favour him.
[4] Counsel for the applicant conceded his client did not benefit from an administrative deferral based on the Minister's public policy under subsection 25(1) of the Immigration and Refugee Protection Act (IRPA) setting the criteria under which spouses and common-law partners of Canadian citizens and permanents residents in Canada who do not have legal immigration status will be assessed for permanent residence.
[5] He also conceded the best interest of children does not necessarily trump a valid removal order but argued that the best interests of the child must be taken into account. He also agreed a Removals Officer when asked to defer on that account is not required to do an in depth H & C exercise.
[6] Counsel for the applicant also agreed the threshold test for serious issue as set out RJR McDonald Inc. v. Canada (A.G.) [1994] 1 S.C.R. 311 was not whether the serious question to be tried was neither frivolous nor vexatious but rather the test is whether the question has merit because granting the stay is the remedy he seeks in his judicial review application.
[7] Counsel for the applicant proposed a number of serious issues of merit and, in particular, the failure of the Removals Officer to consider the baby's emotional needs. He cited jurisprudence which can be distinguished by the age of the children involved which is one of the factors to be taken into account (see Munar v. M.C.I. 205, FC 1180 at paragraph 39).
[8] He stressed on Canada's obligations under the U.N. Convention on the rights of the child (the Convention) but as stated by Justice Nadon, as he then was, in Simoes v. MCI [2000] F.C.J. No. 936 section 9(4) of the Convention envisages the possibility of separation in the context of deportation.
[9] The Removals Officer's notes shows he considered the baby's interests and concluded her mother, who is self-employed, could look after her financially. He noted the baby was not of school age, and if Mr. Cortes made an out-of-Canada application, it could take eight months to a year and a half for a decision and the child would still not have reached the school age when he returns.
[10] Counsel attacks these findings as speculative. He states the most critical years of development are between one to five years of age yet offers no evidence of any special needs for baby Luz.
[11] He acknowledges the H & C application was filed late but argues that the procedure should not prevail over justice. The jurisprudence of this Court, in my view, acknowledges the late filing of an H & C application is a relevant factor.
[12] On irreparable harm, he argues family separation without more. The Federal Court of Appeal in Selliah v. M.C.I. 2004 FCA 261 stated something more is needed in the evidence to demonstrate irreparable harm.
[13] In the circumstances the balance of convenience supports the Ministers'.
ORDER
THIS COURT ORDERS that this stay application is dismissed.
"Francois Lemieux"
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