Date: 20010216
Docket: IMM-694-01
Neutral citation: 2001 FCT 92
BETWEEN:
JOY OBASOHAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.:
[1] This is a motion under section 18.2 of the Federal Court Act, R.S.C. 1985, c. F-7 as amended, to stay the execution of a removal order against the applicant, dated January 4, 2001, by immigration enforcement officer Steffler. The applicant sought the motion for a stay, urging inter alia, irreparable harm to her infant, Anita Isimeme Disi, a Canadian citizen, born in Canada on July 20, 1999.
1. The Facts
[2] The applicant is a citizen of Nigeria who entered Canada on June 18, 1995 and claimed Convention refugee status upon arrival at Pearson International Airport. Her claim was rejected by the Convention Refugee Determination Division of the Immigration Review Board ("CRDD") on July 16, 1996. An application for leave and for judicial review of the CRDD's decision was dismissed. An application for inclusion in the Post Determination Refugee Claimants in Canada Class was also rejected in 1999.
[3] In June 1999, the applicant married Joseph Disi, a citizen of Nigeria, who was determined to be a Convention refugee in 1999, and who was granted permanent resident status in Canada in January, 2000. They had cohabitated for some months and Joseph Disi is the father of the applicant's daughter. An application for sponsorship of the applicant was made by Joseph Disi, but apparently was not filed until the fall of 2000. Determination of that application is still pending before Citizenship and Immigration Canada.
[4] On October 25, 2000, the applicant attended a meeting with a Canadian immigration officer, in company with her husband and her immigration representative. The meeting was adjourned to November 8, 2000, to allow the applicant to provide evidence of the sponsorship application and documentation of her daughter's birth. On November 8, 2000, the applicant surrendered her Nigerian passport and was informed that the immigration enforcement officer would be proceeding with the applicant's removal from Canada. She was instructed to obtain a passport for her daughter if she proposed that her daughter would accompany her. After some delay, that passport was obtained and delivered to Immigration Canada.
[5] On January 4, 2001, the applicant, accompanied by her husband, her daughter, and her counsel, attended another meeting with immigration enforcement officer Steffler. Ms. Steffler advised the applicant that she would be removed from Canada on February 15, 2001, but that during the intervening period, her attorney could make submissions regarding the risk that the applicant and her family would face if she were returned to Nigeria.
[6] During the first three weeks of January 2000, the applicant attended her counsel's office and met with counsel and an assistant. During these meetings, the applicant discussed her domestic situation with the assistant, disclosing then that her relationship with her husband was troubled, that she did not want to leave her daughter, and that she was very fearful of taking her daughter to Nigeria because of the practice of female genital mutilation. Notwithstanding these fears, the applicant instructed the assistant not to include information about her domestic situation in any submissions to the enforcement officer.
[7] Within very recent days before this matter was heard on February 15, 2001, the day before her removal, the applicant disclosed to counsel that her husband had abused her on August 22, 1999, and had also harmed her daughter, who was one month old at the time. Her husband had become so enraged at having been disturbed from sleep that he stuck the applicant and threw the baby on the floor. The baby suffered a swollen head and was admitted to the Hospital for Sick Children in Toronto. As a result, the applicant and her husband were both charged with domestic assault and were ordered not to associate with one another. Ultimately the charges were dropped, as was the order not to associate together. Thereafter the applicant had frequent home visits from the Children's Aid Society and was visited and assisted by an employee of the Macaulay Child Development Centre in Toronto.
[8] The applicant states that she did not reveal this information because she was fearful of her husband's reaction and the effect of any disclosure on his employment and on his immigration status and, by extension, on the pending sponsorship application.
[9] On February 9, 2001, counsel wrote to enforcement officer Steffler informing her of the applicant's disclosure, requesting that the applicant's removal be deferred until the determination of the sponsorship application, or until an application might be made and determined to permit her to qualify for landing from within Canada on humanitarian and compassionate grounds. It is as a result of the decision to carry out the removal order, notwithstanding possible effects upon the applicant's child, that the a stay of execution of the removal order is sought until judicial review of the decision can be obtained.
2. Arguments
[10] When this matter was heard, counsel for the applicant urged that despite the issues of credibility, the applicant is a vulnerable woman who is in a very difficult position. The applicant urged, that under the circumstances, she could not leave the child with the father, a position that counsel for the respondent accepted. The applicant also urged that she could not bring the child to Nigeria for fear of female genital mutilation and the dangers of trafficking of women that is known to occur.
[11] Counsel for the applicant also suggested that in the circumstances of this case, the interests of the Canadian-born child have not been fully considered. Whatever blame might be laid on the mother for disclosing her circumstances so late in the process should not be visited upon her daughter. To avoid irreparable harm, the execution of the removal order should be stayed until further investigation of the child's interests can be undertaken and, if appropriate, be represented independently of those of the applicant.
[12] Counsel for the Minister urged that the interests of the child in humanitarian and compassionate terms are not to be considered by the removals officer so late in the process. Those interests of the child are the concern of an immigration officer during a humanitarian and compassionate investigation, not of an enforcement officer executing a legal removal order. Nevertheless, while the removal officer did not have to consider the interests of the child in this case, she had done so nonetheless, and concluded that no irreparable harm would occur, given that the child would leave Canada at the mother's election and in her care. Ultimately the consent of the parent would be required before any female genital mutilation, a practice opposed by the Nigerian government but still widely followed in that country, could be performed.
[13] The respondent also noted that the applicant was well aware of the removal order and should have acted in a more timely manner to arrange for her daughter's care and interests. This motion is untimely, and the parent is responsible for the interests of this child, not the State.
3. Decision
[14] I conclude that in the unusual circumstances of this case, the motion for a stay should be granted. I am not satisfied, despite the best efforts of the immigration officials, that the interests of this Canadian child have been sufficiently considered. There is a serious issue raised, namely, the circumstances in which a removal officer must account for the interests of a Canadian infant. I note that those interests have not been represented independently during this process.
[15] Moreover, in my view, irreparable harm will occur in the interim should the child be removed to Nigeria with her mother. While the Court is normally concerned with irreparable harm to the applicant, in the circumstances of this case, the interests of the infant child are inseparably linked with those of the applicant. Pending full consideration of the serious issue or earlier full consideration of the child's interests, I consider that the applicant and her daughter are de facto inseparable.
[16] The motion for a stay of the execution of the removal order dated January 4, 2001 is granted pending determination of the applicants' application for leave and for judicial review, or the earlier determination of humanitarian and compassionate considerations affecting the interests of the infant child. If those considerations can only be evaluated on the basis of a separate humanitarian and compassionate application, I direct that, without delay, the applicant file an application for such consideration on humanitarian and compassionate grounds for landing within Canada. An order to this effect was issued February 15, 2001, following the hearing of this application.
[17] I acknowledge the assistance of both counsel for the parties in their presentation of this matter, by telephone conference.
(signed )W. Andrew MacKay
JUDGE
OTTAWA, Ontario
February 16, 2001