Date: 20000128
Docket: IMM-196-00
BETWEEN:
CAMELLA CHERRIEL ALEXANDER PATERSON
AND CHANTAL PATERSON by her Litigation Guardian
CAMELLA CHERRIEL ALEXANDER PATERSON
Applicants
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED J.:
[1] This is a motion seeking a stay of removal of the adult applicant (the "applicant") from Canada, which removal is scheduled for February 2, 2000. A stay of the removal is sought until the applicant"s application challenging the removal officer"s decision of December 30, 1999, is disposed of by this Court.
[2] For ease of reference I will refer to the applicant"s application for leave to commence a judicial review proceeding with respect to the removal officer"s decision, and to have that decision reviewed if leave is granted, simply as a challenge to the decision, or a questioning of its validity. The decision that is sought to be reviewed is the refusal by the removals officer to defer removal of the applicant until her H & C application is processed by the respondent.
[3] The applicant came to Canada in July 1988. She made a claim to be a convention refugee. She gave birth to a daughter in 1991. The applicant did not marry the child"s father although they lived in a common law relationship for a few years. He subsequently married someone else, but divorced that person in 1997.
[4] The applicant states that difficulties arose with her immigration consultant concerning her refugee claim. In any event, her claim for refugee status was rejected and she "went underground".
[5] In 1997, she renewed a close relationship with the father of her child and they married in November 1998. He had remained in contact with the applicant and his daughter throughout the 1991-1997 period. He subsequently filed a sponsorship agreement in support of the applicant"s application that she be granted landing from within Canada on humanitarian and compassionate grounds (the "H & C application"). That application and the sponsorship agreement are dated September 9, 1999. The documents were sent to Vegreville, Alberta, and then returned to the respondent"s Scarborough office. The processing of the application has not been completed because there is a backlog at that office. I accept the affidavit evidence that, if the applicant lived in a smaller community, where there was no backlog, her H & C application would have been dealt with by now.
[6] The applicant"s daughter is now nine years old; she is in grade three at the school she has attended since grade one; she has friends there; she has never lived anywhere except Canada; she has asthma and her doctor states that she is "advised to stay in Canada for medical reasons". There is evidence from a psychologist describing the stress the family is under because of the uncertainty regarding the mother"s immigration status, and stating that the breakup of the family unit will likely lead to permanent emotional scars for the child.
[7] If the applicant is returned to Grenada and her husband"s sponsorship of her landing application is subsequently accepted, she would, of course, be entitled to return to Canada. Affidavit evidence indicates, however, that it would likely take a minimum of two years before the process could be completed that would allow her to return.
[8] The respondent Minister controls the speed with which the applicant"s H & C application can be dealt with. The respondent controls the timing of the execution of the removal order (subject of course to the applicant not disappearing "underground"). The respondent Minister has a policy of not executing removal orders against individuals who have filed H & C applications when the processing of the application has been pending for more than six months. The applicant"s H & C application does not fall under the six month exception, as noted, it was not filed until September, 1999.
[9] In order to stay the deportation order, I must find that: (1) there is a serious question to be tried; (2) irreparable harm will arise if a stay is not granted; (3) the balance of convenience favours the granting of a stay. I have no doubt that the second and third elements exist in this case.
[10] If the applicant is returned to Grenada, her daughter must either go with her mother, or stay in Canada with her father, and be separated from her mother. I have no doubt that this will cause irreparable harm to the child. She will be faced with separation from one or other of her parents, the potential disruption of her schooling in the middle of the year (if she goes with her mother) and removal to a country where she has never lived. If the husband"s sponsorship of his wife"s landing application is successful, the stay in Grenada would be temporary, although it would probably last for a minimum of two years.
[11] If the applicant remains in Canada until the challenge to the validity of the December 30, 1999, decision is dealt with by the Court, or if that proceeding is overtaken by the respondent"s processing of the applicant"s H & C application, the only consequence for the respondent is a relatively short delay in executing the deportation order, which deportation may never occur if the husband"s sponsorship is accepted. It is clear that not only will irreparable harm arise from a failure to grant a stay but the balance of convenience lies in the applicants" favour.
[12] I turn then to whether there is a serious issue to be tried. Counsel for the applicant argues that the decision of December 30, 1999, lacks validity because the removals officer fettered his discretion in treating the six month period, referred to above, as a cut off date. Counsel also argues that the decision lacks validity because the removals officer failed to take into account relevant considerations; he refused to consider the impact of his decision on the child.
[13] The first argument is similar to that accepted in Yhap v. Canada (Minister of Employment and Immigration), (1990), 9 Imm. L.R. (2d) 243 (F.C.T.D.). At the same time, it is not clear at exactly what stage in the removal process the decision is made to defer removal when an H & C application has been pending for more than six months; that decision may be made by someone other than a person in the position of the officer who made the December 30, 1999, decision. I accept, however, the evidence on the record that such a policy is operating within the respondent Minister"s department and its effect is to create different consequences (removal or a stay of removal) depending on the length of time an H & C application has been pending.
[14] In any event, in answer to both arguments of the applicant, the removals officer"s position is that in making arrangements for the applicant"s deportation to Grenada, he is fulfilling the responsibilities required of him by section 48 of the Immigration Act , R.S.C. 1985, c. I-2:
| 48. Subject to sections 49 and 50, a removal order shall be executed as soon as reasonably practicable. (emphasis added)
|
48. Sous réserve des articles 49 et 50, la mesure de renvoi est exécutée dès que les circonstances le permettent. (je souligne)
|
| [15] The removals officer takes the position that in deciding whether or not to defer removal he is entitled to take into account factors such as: whether the applicant is subject to a court order requiring the applicant"s presence in Canada; whether any required travel documents are missing; whether there is a health-related impediment to the applicant travelling; but, he was not entitled to consider the fact that an outstanding H & C application exists, or factors such as, in this case, the impact of his decision on the welfare of the child. Counsel for the respondent referred to the decision in Pavalaki v. Canada (Minister of Citizenship and Immigration) (IMM-914-98, March 10, 1998) for a description of the type of factors that a removals officer is entitled to consider when deciding whether or not to defer removal. |
| [16] The wording of section 48 indicates that a removal order is to be executed as soon as it is reasonably possible to do so. The section is being interpreted, however, by the respondent, as having a less restrictive operation in the case of some H & C applications than in others. This supports an argument that the removal officer"s interpretation is far too restrictive, based on the Minister"s interpretation of the section in other cases. |
| [17] Counsel also argues that the recent Supreme Court decision in Baker v. Canada (Minister of Citizenship and Immigration) (1999), 243 N.R. 22 (S.C.C.), is relevant to the December 30, 1999, decision. The Baker decision dealt with factors that an immigration officer should take into account when making a decision on an H & C application. The decision held that when Canada has signed an international human rights convention, and thereby held out to the international community that Canada subscribes to the values therein, the provisions of that convention should be taken into account by the immigration officer, even though there exists neither federal nor provincial legislation establishing the provisions as part of Canadian statute law. The provisions of the convention do not override all other considerations, as they might had they been the subject of direct federal legislation, but it was held that they were factors that a federal decision-maker should consider when making his or her decision. |
| [18] The decision of the majority of the Court, in paragraph 70, states: |
| ... the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review. |
| [19] The convention under consideration in that case was the Convention on the Rights of the Child. The majority decision of the Court, at paragraph 72, states: |
| The values and principles of the Convention recognize the importance of being attentive to the rights and best interests of children when decisions are made that relate to and affect their future. |
| Counsel argues that similarly, in this case, when the removals officer is deciding whether or not to defer the removal of the applicant until her landing application is processed, he must consider the interests of the applicant"s daughter. |
| [20] Counsel for the respondent"s argument is that a decision on an H & C application is vastly different, and involves a much broader scope of considerations than a decision on whether or not to defer removal; the relevant statutory provisions are much different; there are no guidelines in play in the case of deferral decisions, as exist for decisions on humanitarian and compassionate applications. Those guidelines were an important component of the decision reached in Baker . |
| [21] In addition to the arguments based on the Baker decision, counsel for the applicant argues that there are Charter provisions that apply that require consideration by the removals officer of the interests of the child. He notes that the Baker decision left the Charter arguments open. Paragraph 11 of the majority decision, written by Madame Justice L"Heureux-Dubé, reads: |
| Because, in my view, the issues raised can be resolved under the principles of administrative law and statutory interpretation, I find it unnecessary to consider the various Charter issues raised by the appellant and the interveners who supported her position. |
| [22] Counsel argues that it is clear, from decisions such as New Brunswick (Minister of Health & Community Services) v. G.(J.) [J.G.] (S.C. file 26005, September 10, 1999), that decisions by the state that separate a child from a parent are decisions that affect "the security of the person". As such they attract the protection of Section 7 of the Charter . |
[23] Counsel refers to parallels in the European Convention for the Protection of Human Rights and Fundamental Freedoms, based on that Convention"s provision guaranteeing the right "to respect for [one"s] private and family life". He cites the cases of Berrehab v. The Netherlands, 3/1987/126/177, para. 21; Boujlifa v. France, 122/1996/741/940, 21 October 1997, paras. 35-36. Mehemi v. France, 85/1996/704/896, 26 September 1997, paras. 34-37.
[24] This is not the place to undertake an analysis of the meaning of "the principles of fundamental justice" in section 7, and whether they operate to require that provisions of international human rights conventions, signed by Canada, must be considered by decision makers when making decisions that affect the security of the person.
[25] It suffices to say that given the particular facts of this case, and the several arguments made by counsel that are set out above, I have been persuaded that there is a serious issue to be tried.
[26] For the reasons given, a stay will be granted.
"B. Reed"
J.F.C.C.
Toronto, Ontario
January 28, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: CAMELLA CHERRIEL ALEXANDER PATERSON AND CHANTAL PATERSON by her Litigation Guardian CAMELLA CHERRIEL ALEXANDER PATERSON |
- and -
THE MINISTER OF CITIZENSHIP
| DATE OF HEARING: MONDAY, JANUARY 24, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: REED J. |
DATED: FRIDAY, JANUARY 28, 2000
| APPEARANCES: Mr. Lorne Waldman |
| SOLICITORS OF RECORD: Jackman, Waldman & Associates |
Barristers & Solicitors
281 Eglinton Avenue East
Toronto, Ontario
M4P 1L3
Deputy Attorney General of Canada
FEDERAL COURT OF CANADA
Date: 20000128
Docket: IMM-196-00
Between:
| CAMELLA CHERRIEL ALEXANDER PATERSON AND CHANTAL PATERSON by her Litigation Guardian CAMELLA CHERRIEL ALEXANDER PATERSON |
Applicant
- and -
THE MINISTER OF CITIZENSHIP
Respondent
REASONS FOR ORDER
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