Docket: IMM 8521- 04
Ottawa, Ontario, this 15th day of October, 2004
Present: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN
BETWEEN:
QUAN XIN CHEN
Applicant
and
SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
(Delivered orally and subsequently written for clarification and precision)
[1] The Applicant seeks a stay of deportation slated for the end of this week.
[2] He is a 37 year old Chinese national who sought and was granted asylum in the US in 1985. He subsequently pled guilty to food stamp fraud, went to prison and was deported in 1999. Upon return to China he was questioned, released and ordered to report weekly. Fearing further persecution he fled to Canada in 1999 and claimed refugee status.
[3] He married a Canadian citizen and they have one child born November 12, 2002. His refugee claim was denied on March 13, 2002, his H & C application on February 14, 2004 and his Pre Removal Risk Assessment ("PRRA") application on October 8, 2004. He filed a second H & C application on March 3, 2004, which is still outstanding.
[4] The Applicant is asking for a stay of the removal officer's decision. To succeed he must of course satisfy the tripartite conjunctive test set out in Toth v. Canada (M.E.I.) (1988) 86 N.R. 302.
[5] As to serious issue, the Applicant argues that the removal officer failed to take into account the best interest of the child and the risk to the Applicant on his return.
[6] The duties of a removal officer are very limited. See Boniowski v. Canada (M.C.I.) [2004] F.C.J. No. 1397 at para 18 and 19. Similarly, given the narrow scope of her essentially administrative decision there is also no need for lengthy formal reasons. See Boniowski supra para 11.
[7] Here the removal officer referred to the best interest of the child in her reasons. In addition, the first H & C application also noted the existence of the child, albeit sparingly, as the Applicant had made no submissions in respect of the welfare of his child.
[8] As to failing to make a risk assessment, it is true that the removal decision was made on September 24, 2004, and the absence of such risk assessment would have constituted a serious issue. However, the subsequent PRRA decision on October 8, 2004, cured that defect. It would be a victory of form over substance to say, notwithstanding the issuance of a subsequent PRRA decision, there is a serious issue to be considered as no risk assessment was made when the removal officer made her decision. I am not prepared to go that route.
[9] As to balance of convenience it is well established that the Respondent has a responsibility to see that removal orders are enforced as soon as practicable. The outstanding second H & C application of the Applicant is not affected by his absence and can and will continue to unfold. However, here the Applicant has had the benefit of full due process: a refugee status determination, a H & C consideration and an pre removal risk assessment. I am of the firm view that once these three major avenues of relief for refugees have been exhausted, the balance of convenience lies with the Respondent, absent some extraordinary circumstances. This is not the case in the present application.
[10] Accordingly, having failed two legs of the Toth (supra) test, this application cannot succeed.
ORDER
THIS COURT ORDERS THAT this application be dismissed.
"K. von Finckenstein"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM- 8521-04
STYLE OF CAUSE: Quan Xin Chen v. M.C.I.
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: October 14, 2004
REASONS FOR ORDER AND ORDER: The Honourable
Mr. Justice von Finckenstein
DATED: October 14, 2004
APPEARANCES:
David Orman for the Applicant
Deborah Drukarsh for the Respondent
SOLICITORS OF RECORD:
David Orman for the Applicant
Toronto, Ontario
Mr. Morris Rosenberg for the Respondent
Deputy Attorney General of Canada