Date: 20030925
Docket: IMM-7113-03
Citation: 2003 FC 1101
Toronto, Ontario, this 25th day of September, 2003
Present: The Honourable Mr. Justice O'Reilly
BETWEEN:
MARCOS DAVID BONIOWSKI and
SALOME CECILIA ABALLAY
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicants have been ordered to leave Canada for Argentina on September 30, 2003. They have asked the Court to stay the execution of that order pending judicial review of the decision of an immigration officer not to defer removal any further.
[2] I have concluded that the applicants have satisfied the three-part test for a stay and, therefore, that a stay is appropriate in the circumstances.
I. Serious Issue
[3] The applicants argue that the officer failed to take adequate account of the best interests of their 5-year-old daughter, Natalia. In the alternative, they argue that the officer, having considered Natalia's interests, failed to explain why she would not be unduly harmed by immediate removal.
[4] The parties agree that the officer has only a limited degree of discretion to defer removal: Simoes v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 936. However, an officer is obliged to give some consideration to a Canadian-born child's best interests: Harry v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1727.
[5] In this case, the officer appears to have considered Natalia's interests. She reviewed the documents tendered in support of the family's humanitarian and compassion application, a psychological assessment, and reports on the living conditions and legal rights of children in Argentina. In addition, she met with the family on four occasions. The officer seems genuinely to have accorded the family fair and compassionate consideration, which is to be commended.
[6] However, the officer's only response to the family's submissions was a letter dated September 12, 2003, in which she stated: "Having considered all of your submissions from both deferral requests, I do not feel that deferral of the execution of the removal order is appropriate in the circumstances of this case". In my view, the applicants have raised a serious issue whether the officer's reasons were adequate, particularly in light of the psychologist's conclusion that Natalia's removal from Canada and separation from her surroundings and extended family would "be likely to adversely affect her social and emotional development".
II. Irreparable Harm
[7] This case involves the effect on a Canadian born child of removal from Canada. Removing the child while that issue is explored before this Court would render nugatory any legal remedy that might ultimately be available. Such circumstances constitute irreparable harm: Melo v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 403.
III. Balance of Convenience
[8] In light of the above, the balance of convenience lies in allowing the applicants to remain in Canada while pursuing their legal remedies.
ORDER
THIS COURT ORDERS that:
1. The removal of the applicants from Canada is stayed until their underlying application for leave and judicial review is finally disposed of.
"James W. O'Reilly"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7113-03
STYLE OF CAUSE: MARCOS DAVID BONIOWSKI and
SALOME CECILIA ABALLAY
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: SEPTEMBER 22, 2003
REASONS FOR ORDER
DATED: SEPTEMBER 25, 2003
APPEARANCES: Mr. Roger Rowe
For the Applicants
Mr. Stephen Jarvis
For the Respondent
SOLICITORS OF RECORD: Mr. Roger Rowe
Barrister & Solicitor
Toronto, Ontario M3J 2G2
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT
Date: 20030925
Docket: IMM-7113-03
BETWEEN:
ELEMER BURAI
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER