Date: 20030723
Docket: IMM-4918-03
Citation: 2003 FC 913
BETWEEN:
KEVIN JON PARSONS
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.
[1] These reasons explain an Order dated June 30, 2003, which dismissed an application for a stay of execution of the removal of the Applicant, scheduled to be on July 2, 2003. The application was heard by telephone and at the end of that conference the Order was rendered orally and later that day confirmed in writing.
[2] The Applicant, born July 1963 in the United Kingdom, came to Canada when he was eight months old, and he has since lived in this country. He did not become a citizen. He has a son, now 12 years of age, who since the age of one has been the Applicant's sole responsibility, the child's mother having left the family.
[3] Following convictions in January 2000 for trafficking and possession of restricted drugs for purposes of trafficking, and also for sexual assault, the Applicant was sentenced and incarcerated. As a result of his convictions, he was ordered deported from Canada on September 29, 2000. That deportation order was appealed to the Immigration Appeal Board but was not dealt with by the Board, in accord with the Immigration Act then in force, following danger opinions relating to the Applicant, rendered on behalf of the Respondent Minister.
[4] The first of those opinions, in November 2000, was set aside on judicial review by this Court on August 21, 2001. Before the application for judicial review was heard, the Court had ordered a stay of an effort to execute the outstanding removal order. A second danger opinion concerning the Applicant was issued on May 27, 2002, and that opinion was the subject of an application for judicial review to this Court. Before that was dealt with, on June 27, 2002 this Court again ordered a stay, pending determination of the application before the Court for judicial review. That application was ultimately allowed by order of this Court on consent of the Respondent on June 2, 2003.
[5] Thereafter, the Applicant was called in for interview and was advised that he would be removed from Canada on July 2, 2003, a decision now sought by this application to be stayed.
[6] When this matter came on for hearing the Applicant had applied to the Immigration Appeal Board to have his appeal of the original deportation order set aside, an appeal not dealt with after danger opinions had been issued on behalf of the Minister. Those decisions having now been set aside, it is urged that the Appeal Board should have the opportunity to determine his appeal of the deportation order. However, for the Respondent it is urged that the Immigration and Refugee Protection Act, S.C. 2002, c. 27, as amended ("IRPA"), provides that a person is inadmissible to Canada where he has a serious criminal record and he has no right of appeal to the Appeal Division of the Board concerning a removal order. It is urged the Applicant's appeal to the Board was properly discontinued under section 196 of IRPA. The Board itself has recently determined that it has no jurisdiction to hear an appeal that was discontinued pursuant to the provisions of IRPA (see Andries Kroon v. Canada (MCI), IAD file VA-02816, May 27, 2003). I am persuaded that the Applicant's appeal to the Immigration Appeal Board has been properly dealt with in accord with IRPA.
[7] I note that the Applicant did not make an application, though he was advised he might do so, for a pre-removal risk assessment. Nor had he applied, up to the time of hearing of this stay application, for admission to Canada on humanitarian and compassionate grounds. He does advise by affidavit that he had prepared such an application and his counsel would be submitting it on his behalf.
[8] The principal basis on which a stay was argued related to humanitarian and compassionate considerations concerning the Applicant's son and the relationship between the two of them. It is urged these have not been properly considered at any time by representatives of the Minister, and failure to do so constitutes irreparable harm for purposes of the stay application.
[9] The evidence of that harm from the Applicant's affidavit is in essence that he and his son have a close relationship and the Applicant has been responsible for his welfare and upbringing. During his incarceration, the son lived with the Applicant's father, who is now 62 years of age and not in good health, having been released from hospital after undergoing heart surgery only days before the stay hearing. If he is removed from Canada the Applicant says he would be forced either to abandon his son so that he might grow up in his home country, or to take him to the United Kingdom which is a completely foreign country to both of them.
[10] In my opinion, the evidence before the Court does not constitute irreparable harm in the circumstances of this case. I have no doubt that separation of the father and son would create dislocation and that their moving to the United Kingdom may cause different dislocation to the family. But that does not constitute irreparable harm, between now and the time at which the outstanding application for leave and for judicial review is considered. If that decision is determined favourably for the Applicant he may return to Canada pursuant to subsection 52(2) of IRPA. One must bear in mind that the Applicant has no right, at this stage, to remain in Canada and the stay of his removal would simply provide a temporary basis for him remaining here.
[11] I acknowledge that when a stay was granted in 2002, my colleague Mr. Justice Beaudry commented in part:
[5] In light of the decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, the effects of an immigration decision on the children of the claimant must be considered. In the present case, the Applicant has a ten-year-old son. The son resides with the Applicant's father and step-mother but maintains frequent contact with the Applicant, including weekend visits. The mother of this boy has not been seen, either by the Applicant or his son, for years. The deportation of the Applicant would place him in the position of having to choose between taking his son to the U.K. or leaving him in Canada. Taking the boy to the U.K. would mean removing him from the community in which he was raised and from his grandfather and the Applicant's step-mother, with whom the Applicant's son has also fostered a positive and stable relationship. If the Applicant wee to return to the U.K. without his son, that boy would suffer the pain of separation from the only natural parent with whom he has any bond. It can therefore be concluded that irreparable harm to the Applicant's son would be occasioned by his deportation.
[12] In my view the Baker case, in light of the decision of the Court of Appeal in Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125, [2002] 4 F.C. 358 (C.A.) does not support the Applicant's position that in this case, in a decision to execute a deportation order against the Applicant, the immigration officer concerned was required to assess the impact of that decision on the interests of the Canadian-born son. The jurisprudence does not support the Applicant's view that case law and the IRPA "now make it clear that the rights of a Canadian-born child must be taken into account in any decision which will affect the rights of that child."
[13] In the circumstances of this case there is no evidence that the interests of the child were presented to and were before the removals officer who issued the order for the Applicant's removal. Moreover, the Baker and Legault cases concerned decisions made on humanitarian and compassionate applications for admission to Canada. No such decision is here in question and, indeed, the application for such consideration has not yet been made.
[14] Assuming a serious issue was raised before the Court by the application for leave and for judicial review, I am not persuaded that irreparable harm would occur to the Applicant or to the best interests of his son if the Applicant were now removed from Canada and subsequently the application for leave and for judicial review were to be determined in his favour.
[15] Thus, the application for a stay of the removal of Mr. Parsons was dismissed.
(Sgd.) "W. Andrew MacKay"
Judge
Vancouver, B.C.
July 23, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4918-03
STYLE OF CAUSE: KEVIN JON PARSONS v. THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: OTTAWA and EDMONTON
DATE OF HEARING: June 30, 2003 (via teleconference)
REASONS FOR ORDER: MacKAY J.
DATED: July 23, 2003
APPEARANCES:
Kevin E. Moore FOR APPLICANT
Rick Garvin FOR RESPONDENT
SOLICITORS OF RECORD:
Kevin E. Moore Law Office FOR APPLICANT
Edmonton, AB
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
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