Date: 20110211
Docket: IMM-6220-09
Citation: 2011 FC 168
Ottawa, Ontario, February 11,
2011
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
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Q.A.
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. INTRODUCTION
[1]
This
is an application for judicial review of the Applicant’s request for deferral
of removal pending the Children’s Aid Society of Toronto’s (CAS) application of
Crown wardship in the face of a possible H&C application or through
adoption.
II. BACKGROUND
[2]
The
Applicant was 17 years old at the time he was placed in the care of CAS. He had
arrived in Canada from St.
Lucia when he was 14 having been put on the airplane by his family in the
apparent hope that he would somehow be able to stay in Canada.
[3]
The
Applicant lived with his older brother who was also in Canada illegally.
The brother was deported in March-April 2008 and the Applicant was placed in
the care of CAS.
[4]
Since
that time CAS has been resisting the Applicant’s removal without success. The
latest effort to prevent removal was based on a pending wardship application.
[5]
Mainville
J. (as he then was) granted a stay of removal. To some extent this judicial
review has become academic or moot. The Applicant, by now, is or shortly will
be 18 years old and an adult.
III. ANALYSIS
[6]
The
standard of review for a deferral decision is reasonableness with deference
owed and a recognition of the limited discretion given to removals officers.
[7]
This
is a case unlike most of the precedents in this Court concerning removal of
children. This is the case of an abandoned child where returning the child to
the very family who had abandoned him to Canada poses some
challenging considerations. In that regard this case is unlike the precedents
in this Court.
[8]
The
Removals Officer was correct to reject the argument that the immigration
process must be secondary to the Children’s Aid processes. At best, CAS stands
in the place of a parent. However, what is unique is that this is a case where removal
affects the child but the notional “parent” remains in Canada.
[9]
The
Court is not satisfied that the Removals Officer was alert to the unique
features of this case. The assumptions concerning the Applicant’s ongoing care
once back in St.
Lucia
were highly speculative.
IV. CONCLUSION
[10]
Therefore,
this judicial review will be granted, the deferral decision quashed and the
removal order set aside without prejudice to issuing a new removal order.
[11]
The
Applicant asked to certify a question as to the requirement of a removals
officer to review the best interests of an unaccompanied child in the context
of Canada’s
international obligations, the principles of fairness and the Charter.
[12]
Given
the result, the Applicant likely does not seek certification nor would it be
granted. The question as framed does not really arise here and is largely
settled in such decisions as Baron v. Canada (Minister of
Public Safety and Emergency Preparedness), 2009 FCA 81.
[13]
There
is no question for certification.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is granted, the
deferral decision is quashed and the removal order is set aside without
prejudice to issuing a new removal order.
“Michael
L. Phelan”
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