Docket: IMM-5647-03
Citation: 2003 FC 953
Winnipeg, Manitoba, the 6th day of August, 2003
Present: The Honourable Madam Justice Snider
BETWEEN:
JAIRO GUERRERO BUCHTING
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Jairo Guerrero Buchting (the "Applicant"), a citizen of Nicaragua, has applied for a stay of his removal from Canada to the United States. The underlying application, in this case, is an application for leave and judicial review of the decision dated July 11, 2003 of the removals officer, Robert Fontaine, not to defer the removal of the Applicant. In February 2003 the Applicant's removal had been deferred to allow time for him to make application for permanent residence as a family member of a protected person. This application was filed in May 2003. On July 11, 2003, the Applicant was advised that the Applicant's deportation order was to be immediately enforced. The reason given was that an investigation into the applicant's involvement in crimes against humanity would be required for purposes of his permanent residence application. This investigation would take at least one to three years. In assessing this application for a stay, I have applied the tri partite test set out in Toth v. Canada (Minister of Employment and Immigration), [1988] F.C.J. No. 587 (C.A.) (QL).
Serious Issue
[2] The Applicant argues that his application for leave and judicial review of the decision raises the following issues:
1. whether there was a duty on the officer to consider the best interests of the child Jairo?
2. whether the Applicant was required to make a request for deferral given that the July 11 decision was a reversal of an earlier decision, in February, to defer?
3. whether the reasons for the removal - that the investigation of the applicant for crimes against humanity would take longer than expected - were perverse?
4. whether the doctrine of legitimate expectations operates in this situation to prevent a reversal of the February decision to defer?
[3] In the case of an application for stay of the decision of a removals officer, the court should consider not only whether a serious issue is raised but should consider the merits of the application and the likelihood of success (Wang v. Canada (Minister of Citizenship and Immigration), 2001 FCT 148, [2001] 3 F.C. 682 ).
[4] In this case I am not persuaded that the underlying application has a likelihood of success for these reasons:
1. The removals officer was not under an obligation to consider the best interests of the child in this case. His discretion to defer removal is limited. The case of Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 does not, in my view, extend to the discretion of a removals officer, particularly where there is no clear evidence before the officer as to the impact of the removal on the child (Simoes v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 936 (T.D.) (QL); John v. Canada (Minister of Citizenship and Immigration), 2003 FCT 420, [2003] F.C.J. No 583 (QL)). In this case, even if I assume that no specific request was required, there was no evidence put before the officer other than the existence of a child and family.
2. The decision not to defer was not perverse. The decision that further deferral should not continue was reasonably open to the removals officer in the circumstances.
3. With respect to the doctrine of legitimate expectations, there is, in my view, a requirement that a person relying on the doctrine show that he has acted to his detriment in reliance on the representations. There is no such evidence. Further, I doubt that the doctrine applies in this situation in any event.
[5] As a result, the Applicant has failed the first part of the test. Since the test is conjunctive, this is fatal to the application.
Irreparable Harm
[6] However, even if a serious issue had been shown, I am not satisfied that the Applicant has demonstrated irreparable harm beyond that inherent in the notion of deportation. Family separation is difficult but does not constitute irreparable harm unless there is something beyond the usual hardship.
[7] On these facts, I find the analysis in Ryan v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1413, [2001] F.C.J. No. 1939 (QL) more directly applicable than that in Melo v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 403 (T.D.) (QL). I do not find that the removal would result in a loss of benefit of the application for judicial review; the application can continue in spite of removal.
[8] With respect to the length of time that may be required for the assessment of the Applicant's request for permanent residence, I note that the time required is, in part, of the Applicant's own making. He could have made an application on humanitarian and compassionate grounds earlier and did not.
[9] Finally, I note an absence of evidence on whether the child or family could accompany the Applicant thereby allowing the family to remain together.
Balance of Convenience
[10] In these particular circumstances, I am of the view that the balance of convenience weighs in favour of the Respondent. The Applicant has, in the past, been the subject of a warrant for his arrest when he failed to show up for his removal in May 2000. He is also subject to an investigation for suspected human rights violations. I also note that the Applicant made no attempts to regularize his status in Canada between 2000 and May 8, 2003 when he finally submitted his in-Canada application for landing. Processing of the underlying application will continue despite the Applicant's removal. All of these factors weigh against the Applicant.
[11] On the other hand, the public has an interest in having this mandatory order, which has been outstanding since May 2000, executed. Effective enforcement mechanisms and finality of process are in the best interests of Canadians. To allow a stay in these particular circumstances is to introduce an unacceptable level of confusion and uncertainty into removals pursuant to s. 48 of the Immigration and Refugee Protection Act, S.C. 2001, c.27. Thus, the balance of convenience lies with the Respondent.
ORDER
THIS COURT ORDERS that the motion is denied.
"Judith A. Snider"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5647-03
STYLE OF CAUSE: Jairo Guerrero Buchting v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: August 5, 2003
REASONS FOR ORDER : The Honourable Madam Justice Snider
AND ORDER
DATED: August 6, 2003
APPEARANCES:
David Matas FOR PLAINTIFF / APPLICANT
Nalini Reddy FOR DEFENDANT / RESPONDENT
SOLICITORS OF RECORD:
David Matas FOR PLAINTIFF/APPLICANT
Barrister & Solicitor
602 - 225 Vaughan Street
Winnipeg, MB R3C 1T7
Department of Justice FOR DEFENDANT/
301 - 310 Broadway RESPONDENT
Winnipeg, MB R3C 0S6