Date: 19991110
Docket: IMM-5278-99
BETWEEN:
TEODORA VILLAREAL
aka TEODORA RODRIGUEZ VILLAREAL
Applicant
-and-
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
MACKAY J.
[1] The Applicant seeks a stay of execution of a removal order against her, which is to be effected by an order that she report for removal on November 26, 1999. The stay is sought pending the decision by an immigration officer on the Applicant"s application to remain in Canada on humanitarian and compassionate grounds ("H. & C Application").
[2] The Applicant came to Canada as a landed immigrant in 1994 from the Philippines, her native country. She was married before coming to Canada but when she applied for permanent residence and when she arrived in Canada she represented that she was unmarried and had no dependants. After her arrival in Canada she gave birth to a son, whose father, her husband, remained in the Philippines. Thereafter her misrepresentation about her married status was discovered and in 1996 she was reported by inquiry as having gained admission to Canada by false representation. A removal order was issued against her. She appealed that order to the Appeal Division of the Immigration and Refugee Board which dismissed her appeal in March 1998.
[3] Thereafter she applied for judicial review of the Board"s decision, an application which was dismissed by my colleague Mr. Justice Evans on April 30th , 1999. She then applied, by letter from her counsel dated June 29th, 1999, pursuant to Regulations under s. 114(2) of the Immigration Act, to be allowed to remain in Canada on humanitarian and compassionate grounds. No decision has been made on that application and the Applicant has been advised that it may be some months before she could be interviewed in relation to that application, if an interview is needed.
[4] On October 27th, 1999, Ms. Villareal received a letter from an enforcement officer advising that she is to be removed from Canada on November 26th, 1999.
[5] The Applicant"s mother is a Canadian citizen with whom she and the Applicant"s son reside. She has two siblings who are lawful residents of Canada. Her mother looks after her son while the Applicant works, and she assists in financial support of her mother. Since her arrival in Canada the Applicant has worked, she has not been on welfare, and she has made a contribution to her church and to social and community organisations. Her family is very close and she believes that it would be harmful to her son, who has commenced schooling, if she had to leave Canada with or without him, while her h & c application for residence is being processed.
[6] Since the decision on her appeal to the Immigration and Refugee Board, and since the decision of Mr. Justice Evans in her case, the Supreme Court of Canada released its decision in Baker v. The Minister of Citizenship and Immigration (Court File No. 25823, July 9, 1999 (S.C.C.)). It is urged, on the basis of that decision, that the best interests of a child are to be given substantial weight in the assessment of humanitarian and compassionate applications. It is urged they were not appropriately addressed in the decisions of the Appeal Board, and the decision on her judicial review application.
[7] On behalf of the Applicant, it is urged that a serious issue is here raised since no consideration of the special circumstances of her Canadian citizen child has yet been given. I am not persuaded that there is a serious issue at this stage. That assessment is a matter for consideration by those concerned with the h & c application made by the Applicant, not a matter for this Court.
[8] Even if there were a serious issue to be considered by the Court, I am not persuaded in the circumstances of this case that irreparable harm will occur to the Applicant, or even to her child, if a stay is not now granted. Irreparable harm must be harm which will occur in the interim between now and the time when her h & c application is determined. That application remains for consideration by the Respondent Minister. It is incumbent on her officers to ensure that the application is dealt with fairly and that the process includes appropriate consideration of the particular circumstances of the child in this case, who is a Canadian citizen. If that determination requires an interview of the Applicant that can be arranged whether she is in Canada or abroad, either by telephone or through Canadian officers in the Philippines. Of course, if her application is successful the Minister will then have an obligation to facilitate her return to Canada.
[9] Until the h & c application is determined, if the Applicant is removed from Canada she may decide that her son should accompany her, or she may decide he should remain with family here. I am not persuaded that in the circumstances she or her son will suffer irreparable harm in the limited time that can reasonably be expected before a decision is made on her h & c application.
[10] In the circumstances of this case, the balance of convenience clearly weighs in favour of the Minister.
[11] Since the requirements for an order staying the removal of the Applicant are not here met, the application for a stay pending the determination of her
h & c application is dismissed by separate order.
"W. Andrew MacKay"
Judge
Toronto, Ontario
November 10, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: TEODORA VILLAREAL |
aka TEODORA RODRIGUEZ VILLAREAL
Applicant
- and -
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
Respondent
| DATE OF HEARING: MONDAY, NOVEMBER 8, 1999 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: MACKAY J. |
DATED: WEDNESDAY, NOVEMBER 10, 1999
| APPEARANCES: Mr. Norris Ormston |
| SOLICITORS OF RECORD: J. Norris Ormston |
Barrister & Solicitor
739 Bloor Street West
Toronto, Ontario
M6G 1L6
| Deputy Attorney General of Canada |
FEDERAL COURT OF CANADA
Date: 19991110
Docket: IMM-5278-99
Between:
aka TEODORA RODRIGUEZ VILLAREAL
Applicant
-and-
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
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