Date: 20020409
Docket: IMM-1506-02
Neutral citation: 2002 FCT 397
BETWEEN:
PAN JUN KIM,
SUK HWA KANG
and DONG JIN KIM
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.
[1] The Applicants, citizens of Korea, seek a stay of a decision not to defer the execution of their removal orders pending determination of the leave and judicial review of that same decision or pending leave and judicial review of a recently filed H & C application.
[2] The Applicants are a family unit, less one. Mr. Kim, the father and Suk Hwa Kang, the mother, have another son Thomas, who is nine years old, a Canadian citizen and currently in grade four.
[3] Counsel for the Applicants argues there are two serious issues arising from the removals officer's exercise of discretion:
(i) it is said that he fettered his discretion when he expressed the view, during an interview with the Applicants and their consultant, he had a limited discretion in the matter;
(ii) he failed to exercise that discretion properly when considering the issue of irreparable harm which would befall on their son Thomas, who was just finishing his school year.
[4] I cannot accept counsel for the Applicants' first argument. It is clear from this Court's jurisprudence, the removals officer had, in the circumstances of this case, limited discretion in deferring the execution of a removal order whose validity is not attacked given Parliament's direction in section 48 of the Immigration Act that such removal orders are to be executed as soon as possible.
[5] The removals officer, Senior Immigration Officer Begley (the SIO) was correct in the view he expressed on the point, took into account the Applicants' submissions concerning the harm to Thomas should his school year be interrupted and did not, in my view, constrain his discretion by not fully considering that harm.
[6] The second argument must also be rejected on the basis of the Federal Court of Appeal's recent decision in The Minister of Citizenship and Immigration v. Legault [2002] FCA 125 (March 28, 2002).
[7] Legault, supra, teaches us in matters relating to the exercise of discretion, reviewing courts are not to re-weigh relevant factors but to ensure the decision-maker takes all relevant factors into account and does not err in their application by, amongst other matters, taking into account irrelevant considerations or misconstruing facts.
[8] The SIO was not satisfied on the evidence before him at the time he made his decision there was sufficient evidence presented of irreparable harm to Thomas.
[9] The record shows this view was reasonably open to the SIO in the light of representations made to him and, in particular, the Applicants' consultant's submissions in writing dated March 25, 2002.
[10] Counsel for the Applicants argues the SIO erred by relying upon the conclusions of the Immigration Appeal Division that his parents chose to move Thomas back to Korea in the 1993 when they were permanent residents in Canada. This reliance was said to be an irrelevant consideration.
[11] I do not agree. As I see it, such circumstances were a relevant factor in the SIO's assessment how he should exercise his discretion.
[12] In terms of irreparable harm, all of the arguments by the Applicants focus on the irreparable harm to their Canadian-born child. I do not intend to deal with a psychiatric report concerning Thomas which was not before the SIO when he made his decision. As to the other circumstances relied upon by counsel for the Applicants concerning Thomas, I find that they do not meet the level of proof of irreparable harm required in the circumstances of a case of this nature, that is, clear and convincing evidence of irreparable harm without elements of speculation or conjecture. This is so particularly as to the evidence concerning the difficulties of his re-integration into Korean life and the schooling which he may receive there.
[13] The Applicants fail to meet the serious issue and irreparable harm prongs of the test for the grant of a stay. I make no comments on the issue of balance of convenience.
[14] For all of these reasons, this stay application is dismissed.
(Sgd.) "F. Lemieux" Judge
Vancouver, British Columbia
April 9, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1506-02
STYLE OF CAUSE: Pan Jun Kim et al. v. MCI
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: April 8, 2002
REASONS FOR ORDER OF THE COURT BY: Lemieux J.
DATED: April 9, 2002
APPEARANCES:
Adrian D. Huzel FOR APPLICANTS
Helen Park FOR RESPONDENT
SOLICITORS OF RECORD:
Adrian D. Huzel FOR APPLICANTS
Deputy Attorney General of Canada FOR RESPONDENT
Department of Justice
Vancouver, British Columbia