Date: 20020409
Docket: IMM-1457-02
Neutral citation: 2002 FCT 399
BETWEEN:
JOSE BONERGE MONGE TOBAR
CIC File 5139-3897-1546
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.
[1] The Applicant, a citizen of El Salvador, seeks an interim stay of the execution of the removal order made against him until such time as his underlying application for leave and judicial review of a decision not to defer that execution made by Meagan Sands (the Removals Officer) is decided or, until his H & C application submitted to Citizenship and Immigration Canada on October 23, 2001 is determined.
[2] The Applicant reached Lacolle, Quebec in May 1999 and, in June 1999 made a refugee claim which was transferred to Vancouver for hearing.
[3] On June 28, 2001 the Refugee Division decided that he was not a Convention refugee. The tribunal found his evidence not credible.
[4] After his arrival in Vancouver, he met Olivia Violet Jim, a Canadian citizen. They married on March 2, 2001. She gave birth to their first child, Benjamin, on September 3, 2001. She also has a child, Shea, from a previous relationship. Shea was born on February 5, 1999.
[5] On October 19, 2001, the Applicant made a sponsored application for permanent residence in Canada and sought a section 114 Immigration Act exemption permitting inland processing. That application is still outstanding.
[6] Counsel for the Applicant focused her arguments on the Removals Officer's decision letter of March 27, 2002 and argued that it raised serious issues concerning:
(i) whether the Removals Officer considered the best interest of the children because that letter concentrated on the Applicant's past criminality for which he was sentenced to one-year probation; and
(ii) in that letter the Removals Officer made a finding, not based on any evidence, that the child's emotional and financial interests will be met through the strong family support system that is currently in place for the child which includes his sister, his mother and her extended family.
[7] In terms of irreparable harm, counsel for the Applicant initially raised the issue of irreparable harm to the Applicant should he return to El Salvador where he feared a threat to his life because of events which led to his flight. Counsel later abandoned that point when it was demonstrated that no such risk of return had ever been raised with Citizenship and Immigration Canada.
[8] What remained on the irreparable harm issue was not any irreparable harm to the Applicant himself but rather irreparable harm to his wife who relied upon him to take care of the children while she was pursuing her attempts to better herself.
[9] It has been said many times by this Court that a removals officer's discretion is a very limited one. On the one hand, the scope of such a discretion encompasses such matters related to the removal process itself and on the hand may encompass more fundamental issues related to the applicant's life which is not present in this case.
[10] Also, it has been consistently held that an outstanding H & C application, in and of itself, without more, is not sufficient to trigger a positive exercise of the removals officer's discretion in the light of the statutory mandate which Parliament had given to removals officers to execute a removal order as soon as practicable.
[11] Clearly, the Applicant has failed to meet the irreparable harm test. He advanced no real evidence on the point of any harm to himself of the kind recognized by the jurisprudence to justify deferral of a valid removal order.
[12] In this case, the evidence went to hardship the family would suffer should he be removed. There are many cases in this Court which hold such evidence is not satisfactory to meet the irreparable harm test.
[13] As to the best interest of the children, the Federal Court of Appeal's recent decision in The Minister of Citizenship and Immigration v. Legault [2002] FCA 125 (March 28, 2002), this was said:
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[12] ... The presence of children, contrary to the conclusion of Justice Nadon, does not call for a certain result. It is not because the interests of the children favour the fact that a parent residing illegally in Canada should remain in Canada (which, as justly stated by Justice Nadon, will generally be the case), that the Minister must exercise his discretion in favour of said parent. Parliament has not decided, as of yet, that the presence of children in Canada constitutes in itself an impediment to any "refoulement" of a parent illegally residing in Canada ...
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[14] Legault, supra, also tells us the reviewing court should not re-weigh the factors properly taken into account by the Removals Officer. While perhaps I would have reached a different conclusion than did the Removals Officer on what constitutes the best interest of the children, I cannot interfere simply to substitute my decision for that of the Removals Officer.
[15] I must find a manifest error which the record does not disclose.
[16] For all of these reasons, this stay application is refused.
(Sgd.) "F. Lemieux" Judge
Vancouver, British Columbia
April 9, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1457-02
STYLE OF CAUSE: Jose Bonerge Monge Tobar v. MCI
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: April 8, 2002
REASONS FOR ORDER OF THE COURT BY: Lemieux J.
DATED: April 9, 2002
APPEARANCES:
Emma Andrews FOR APPLICANT
Pauline Anthoine FOR RESPONDENT
SOLICITORS OF RECORD:
Andrews, Bjarnason FOR APPLICANT
Barristers & Solicitors
Vancouver, British Columbia
Deputy Attorney General of Canada FOR RESPONDENT
Department of Justice
Vancouver, British Columbia
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