Date: 20030528
Docket: IMM-3433-03
Citation: 2003 FCT 668
Ottawa, Ontario, this 28th day of May, 2003
PRESENT: THE HONOURABLE MR. JUSTICE MacKAY
BETWEEN:
BERNAL ROMAN BARRANTES OBANDO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.
[1] These are brief Reasons for my dismissal of an application for a stay of execution of a removal order after hearing the matter by telephone conference on May 21, 2003. The removal order served on the applicant on May 7, 2003, directed him to report for removal on May 22, 2003.
[2] At the commencement of the hearing, a preliminary issue arose concerning proposed representation of the applicant, a citizen of Costa Rica, who was representing himself but sought approval of the Court to be represented by a consultant, who was not a lawyer, in the course of the hearing. By correspondence in advance of the hearing, it was evident that objection based on the Court's own rules permitting representation by persons themselves or by solicitors retained on their behalf, was raised by counsel for the Minister. Through Marcos Ortiz-Rojas, an interpreter who had interpreted the documents prepared for the hearing from Spanish to English, and who was now proposed by the applicant as his representative, I asked questions of Mr. Barrantes Obando which led me to conclude that the applicant:
1. is not proficient in the English language and would not have been able to represent himself;
2. had no submissions to make on his own behalf but wished submissions to be made by Mr. Ortiz-Rojas on his behalf;
3. was prepared to adopt (or not to) submissions made on his behalf by Mr. Ortiz-Rojas as his own after those submissions were made.
The Court was satisfied that the answers to these questions were in the affirmative and it therefore authorized Mr. Ortiz-Rojas to make submissions on behalf of the applicant. At the conclusion of those submissions, the applicant was asked, and he affirmed, that the submissions made by Mr. Ortiz-Rojas on his behalf were adopted as his own.
[3] I turn to the merits of the stay application after a brief review of the background.
[4] The applicant, a citizen of Costa Rica, now 21 years of age, arrived in Canada in April 2000 on a visitor's visa. In September 2000 he claimed Convention refugee status, as a member of a particular social group, homosexual men from Costa Rica. His refugee claim was rejected on February 6, 2002, when the Refugee Division found his evidence of his background and mistreatment in Costa Rica not credible. He did not file an application for leave and judicial review of the decision.
[5] He did submit an application to be considered in the PDRCC class in March 2002. That was converted into a request for a pre-removal risk assessment ("PRRA") under the Immigration and Refugee Protection Act, S.C. 2001, c-27, as amended ("IRPA"), which came into force on June 28, 2002. An application for assessment under the PRRA program was provided to him in January 2003 and he made submissions, with an extension of time, in February 2003. The PRRA officer concerned decided on March 27, 2003 that his application was not allowed since there was no assessed risk of persecution under s. 96, or of torture under paragraph 97(1)(a), or a risk to his life or a risk of cruel and unusual treatment or punishment under paragraph 97(1)(b) of IRPA.
[6] That decision was not served on the applicant until May 7, 2003 when he was also served with a direction to report for removal on May 22, 2003. Meanwhile, the applicant had filed an application for exemption from the normal visa requirements on humanitarian and compassionate grounds ("H & C application"). That application was, of course, outstanding when this application for a stay was heard. Its existence had been brought to the attention of the removal officer on May 7th when the applicant had been served with the PRRA decision and a removal order, but the officer declined then the applicant's request for deferral of his removal.
[7] The principal argument in support of the stay application was that the applicant had been married after his arrival in Canada and that his wife, a high school student, had given birth to their son, now less than three months old. The best interests of the child and his mother, it was urged, would be irreparably harmed if the applicant were now deported from Canada. The argument was based on Baker v. Canada [1999] S.C.J. No. 39, [1999] 2 S.C.R. 817, where the Supreme Court stressed the significance of consideration of the best interests of children who might be effected by removal of their mother from Canada in assessing the mother's H & C application.
[8] The applicant filed an application for leave and for judicial review on May 9, 2003, concerning the PRRA decision and with that application outstanding and the outstanding application for H & C consideration, it was urged that the stay of his removal should now be granted, pending decisions on those matters.
[9] I assume serious issues are raised by the application for leave and judicial review now filed in the Court.
[10] However, I am not persuaded that irreparable harm will be caused to the applicant or to the best interests of his wife and child, pending determination of his application for leave and for judicial review, or of his application for H & C consideration. Those applications will be dealt with respectively by the Court and by the Minister, processes which may take some months. If either of those should lead to a favourable decision in relation to the application concerned, the Minister should facilitate the applicant's return to Canada in accord with that favourable decision.
[11] While I appreciate the difficulties which separation from his family will present both to the applicant and to his family, I am not persuaded that the PRRA officer had any responsibility for assessing humanitarian and compassionate considerations. Moreover, I am not persuaded that the removals officer erred in declining to defer removal when requested on May 7th. At that time, there was no record of filing of the H & C application in the department's information system, but he took into account the information included in a copy of that application which was provided to him and was aware that the applicant had an infant son, though apparently he thought the son was a year old.
[12] In any event, there is no evidence before the Court and I was not persuaded by representations on behalf of the applicant that there was a basis to find irreparable harm would be caused to him if he were now deported and some months hence either of his applications should be decided in his favour. At worst, he will then have been separated from his family for some months. The fullest and fairest consideration will be made by those responsible for the H & C application. If that is determined in his favour and he then returns to Canada to apply for landing from within the country, any harm to the family relations will have been resolved. If the applications do not result in a favourable decision, the applicant will not have suffered irreparable harm in the period between now and the time those applications are decided and it is finally determined that he has no basis for continuing residence in Canada without acquiring appropriate status under IRPA.
[13] For these Reasons, the request for a stay was dismissed.
"W. Andrew MacKay"
J.F.C.C.
Ottawa, Ontario
May 28, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3433-03
STYLE OF CAUSE: BERNAL ROMAN BARRANTES OBANDO
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: Wednesday, May 21, 2003
REASONS FOR ORDER OF MacKAY J.
DATED: Wednesday, May 28, 2003
APPEARANCES:
Marcos Ortiz-Rojas
(Immigration Consultant)
FOR APPLICANT
Kareena Wilding
FOR RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT