Date: 20010425
Docket: IMM-1943-01
Neutral citation: 2001 FCT 388
BETWEEN:
LUCILLE RAMONA SMITH
Applicant
-and-
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] The Applicant is a citizen of Barbados who has been living in Canada since 1986. However, she did not comply with the terms of a deportation order dated December 15, 1992.
[2] She stated in her affidavit that she applied for permanent residence in Canada on humanitarian and compassionate grounds on September 27, 1999 and she attached to the supporting submission a letter from her lawyer dated the same date. In that letter it stated "Through unprofessional legal representation, through no fault of her own, Lucille Smith was not advised of her legal obligations, and failed to attend interviews after the refusal of her claim for refugee status. She was therefore not aware that a deportation order was issued against her". A deportation order had been issued against the Applicant on December 15, 1992. On that same date, she had signed an acknowledgment of terms and conditions with respect to the deportation order stating that she would "Obtain written acknowledgment that each change of Canadian residential address has been registered with an Immigration Official at Canada Immigration Centre at 250 Davisville Avenue, Toronto, Ontario, before each change of Canadian residential address."
[3] The Respondent tried to remove her in 1994 and being unable to find her, had to issue a warrant for her arrest which was executed on February 20, 1999.
[4] The Applicant has three infant children who were born in 1997, 1999 and 2000. She also had a child from her first marriage who was born in 1990. She had two failed
H & C decisions in 1991 and 1992 and she had a failed refugee claim in 1987.
[5] She applied in September 1999 for permanent residence in Canada on humanitarian and compassionate grounds. This application has not been disposed of. However, the Applicant is primarily responsible for the delay in the processing of the application. She was requested to provide information with respect to dates on employment and the names and addresses of employers. She did not provide any information in this respect except what was in the original application untilafter the deportation date was set in 2001. Accordingly, the Respondent is not responsible for the delay in providing the H & C decision.
[6] The deferrals officer declined to defer removal by letter of April 2, 2001. No reasons were set out in this letter.
[7] The Applicant submits that there is a serious issue here because the officer did not consider the best interest of the children. I agree with Nadon J. in Simoes v. M.C.I. (June 16, 2000), Doc. Imm-2664-00 & Imm-2775-00 (F.C.T.D.), where he stated in paragraph 11:
... Baker does not require a removal officer to undertake a substantive review of the children's best interests, including the fact that the children are Canadian. This is clearly within the mandate of an H & C officer. To "read in" such a mandate at the removals stage would, in effect, result in a "pre H & C" application, which in my opinion, is not what the law requires. Section 48 of the Immigration Act provides the following: "Subject to sections 49 and 50, a removal order shall be executed as soon as reasonably practicable." Sections 49 and 50 deal with statutory stays of execution in certain defined circumstances; for instance, where an applicant has filed an appeal which has yet to be heard and disposed of, or where there are other proceedings.
[8] He also stated at paragraph 14 of Simoes, supra:
Regarding H & C applications involving Canadian children, I cannot subscribe to the view submitted by the Applicant - namely, that the removal officer must defer removal of a parent with Canadian children pending the determination of their H & C application.
[9] In any event, there is no irreparable harm. I agree with Justice MacKay in Villareal v. Canada (M.C.I.),[1999] F.C.J. No. 1754 (TD) (QL) where MacKay J. stated:
7. On behalf of the Applicant, it is urged that a serious issue is here raised since no consideration of the special circumstances of her Canadian citizen child has yet been given. I am not persuaded that there is a serious issue at this stage. That assessment is a matter of consideration by those concerned with the h & c application made by the Applicant, not a matter for this Court.
8. Even if there was a serious issue to be considered by the Court, I am not persuaded in the circumstances of this case that irreparable harm will occur to the Applicant, or even to her child, if a stay is not now granted. Irreparable harm must be harm which will occur in the interim between now and the time when her h & c application is determined. That application remains for consideration by the Respondent Minister. It is incumbent on her officers to ensure that the application is dealt with fairly and that the process includes appropriate consideration of the particular circumstances of the child in this case, who is a Canadian citizen. If that determination requires an interview of the Applicant that can be arranged whether she is in Canada or abroad, either by telephone or through Canadian officers in the Philippines. Of course, if her application is successful the Minister will then have an obligation to facilitate her return to Canada.
9. Until the h & c application is determined, if the Applicant is removed from Canada she may decide that her son should accompany her, or she may decide he should remain with family here. I am not persuaded that in the circumstances she or her son will suffer irreparable harm in the limited time that can reasonably be expected before a decision is made oh her h & c application.
[10] In the case before me, the husband of the Applicant and the father of three infant children is a Canadian citizen and does not have to leave. As stated in the application for H & C consideration, the in-laws are, "willing to look after the children while Lucille Smith works". Under these circumstances, it appears that the children's paternal grandparents would be in a position to assist the Applicant's husband with the care of the children if the deportation order is executed. As such, there would be no irreparable harm caused by the return of the Applicant to Barbados. If there is a lengthy separation of spouses, that is one that is created by the Applicant herself in not replying to the requests of Immigration for details on her employment situation.
[11] The cases ofMelo v. M.C.I. (June 13, 2000), Doc. Imm-742-00 (F.C.T.D.) and Valencia v. M.C.I. (July 6, 2000), Doc. Imm-3047-00 (F.C.T.D.) are distinguishable from the matter before me because they involved permanent residents. In this case, the Applicant is not a permanent resident, but has overstayed her visitor's visa. I note that in the past, she failed to provide a change of address as required under the terms and conditions of her deportation order. The Applicant has failed to provide credible evidence to support the granting of her application.
ORDER
[12] The application for a stay of the removal order is dismissed.
"W. P. McKeown"
J.F.C.C.
Toronto, Ontario
April 25, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1943-01
STYLE OF CAUSE: LUCILLE RAMONA SMITH
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: MONDAY, APRIL 23, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: MCKEOWN J.
DATED: WEDNESDAY, APRIL 25, 2001
APPEARANCES BY: Mr. David A. Bruner
For the Applicant
Mr. Stephen H. Gold
For the Respondent
SOLICITORS OF RECORD: Hoppe, Bruner
Barristers & Solicitors
25 Isabella Street
Toronto, Ontario
M4Y 1M7
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010425
Docket: IMM-1943-01
Between:
LUCILLE RAMONA SMITH
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER