Date: 20040113
Docket: IMM-163-04 and
IMM-164-04
Citation: 2004 FC 42
BETWEEN:
CRAIG GRAY
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION AND
SOLICITOR GENERAL OF CANADA
Respondents
REASONS FOR ORDER
PHELAN J.
[1] The applicant in Court file IMM-163-04 seeks a stay of the removal order dated December 30, 2003 against him, requiring the applicant to report on Thursday, January 15, 2004. A request for deferral of that order was denied by Citizenship and Immigration Canada. The basis for the deferral request is the alleged failure to assess the best interests of the children.
[2] The applicant in Court file IMM-164-04 also seeks a stay of a deportation order which is the same removal order as in Court file IMM-163-04.
[3] The applicant, Craig Gray, is a 30 year old citizen of Jamaica. In 1994, at age 21, he was convicted in Florida of attempted robbery and attempted murder. He was convicted and sentenced to three years in prison.
[4] The evidence suggests that some time prior to 1998, the applicant visited Canada on a number of occasions, a sufficient number of times to begin a common law relationship with Sophia Geddes in 1998. The circumstances of his various travels to Canada, given his U.S. criminal record, might raise some questions as to whether his conviction was disclosed to Canadian authorities.
[5] The applicant's affidavit in this Court suggested that he was the father of two children (ages three years and four months respectively). Only upon being challenged by the respondent, the applicant filed, with leave of this Court, a further affidavit clarifying that he was the biological father of the four month old child and had acted as a "father" to the three year old.
[6] Notwithstanding his common law relationship in Canada, the applicant spent sufficient time in Jamaica to become the operator of a restaurant. It was while he was at the restaurant that he was robbed twice, the last time he was stabbed and threatened with further violence if he did not produce more money later. Following some further threatening telephone calls, he returned to Canada on September 25, 2001.
[7] The applicant was ordered deported on October 5, 2001 on the basis of the misrepresentations made as to his U.S. residency and the existence of his criminal record.
[8] On November 25, 2002, the applicant was determined to be a danger to the public in Canada. The applicant did not challenge this conclusion.
[9] The applicant made an application for a Pre-Removal Risk Assessment on December 18, 2002.
[10] As a result of changes in the process by which PRRA decisions were made, the applicant had the benefit of two PRRAs, both of which concluded that he was not at risk everywhere in Jamaica and therefore had an IFA. The last of these PPRAs was dated November 21, 2003.
[11] The applicant now seeks a stay of the removal order on the basis that:
(a) no assessment of the best interests of the children has been made;
(b) he is at risk if he is returned to Jamaica.
[12] There is no need to set out in detail the tripartite test in Toth v. Canada (Minister of Employment and Immigration) (1988) 86 N.R. 302 (F.C.A.). The issue in this stay application turns principally on irreparable harm. The applicant must meet all three elements in Toth, supra.
[13] While I have considered the matter of a "serious issue", I note that the test for a stay and for leave for judicial review are somewhat different and nothing in these reasons should impact the leave application. Even if I were satisfied that the applicant met the necessary threshold on this point, I am not satisfied that he has done so on the other two, particularly that of irreparable harm.
[14] With respect to "being at risk", the applicant is essentially asking this Court, on an interlocutory motion, to overturn the findings of two PRRA officers and substitute its assessment for that of the officers. The applicant has failed to produce clear and convincing evidence or other basis which would suggest, that for purposes of this motion, the Court ought to engage in this exercise.
[15] Regarding the issue of the "best interests of the children" assessment, I adopt the conclusion of MacKay J. in Parsons v. Minister of Citizenship and Immigration, 2003 FC 913, Docket IMM-4918-03, July 23, 2003, which rejected the argument that an immigration officer dealing with the execution of a deportation order must engage in an assessment of the impact of the decision on the interests of the Canadian born children.
[16] In this case, the applicant did make submissions to the removal officer with respect to the children's interests and was advised that there were no circumstances which justified a deferral.
[17] Any adverse impact on the children arising from the execution of the removal order are impacts which are inherent and arise naturally from the removal order (see Celis v. Canada (Minister of Citizenship and Immigration) 2002 FCT 1231 (Pinard J.)).
[18] The applicant's rights to seek leave and for judicial review continue whether he is in Canada or not.
[19] For these reasons, the applications are dismissed.
"Michael L. Phelan"
J.F.C.
Ottawa, Ontario
January 13, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NOS.: IMM-163-04 / IMM-164-04
STYLE OF CAUSE: CRAIG GRAY v. MCI
APPLICANT'S MOTION HEARD BY TELECONFERENCE BETWEEN OTTAWA AND TORONTO
DATE OF HEARING: January 12, 2004
REASONS FOR ORDER Of THE HONOURABLE MR. JUSTICE PHELAN
DATED: January 13, 2004
APPEARANCES:
Mr. Osborne G. Barnwell FOR THE APPLICANT
Ms. Kareena R. Wilding FOR THE RESPONDENT
SOLICITORS OF RECORD:
Hinkson, Sachak, McLeod & Barnwell FOR THE APPLICANT
Barristers and Solicitors
277 Richmond Street West
Toronto, Ontario
M5V 1X1
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Ontario Regional Office
The Exchange Tower
130 King Street West
Suite 3400, Box 36
Toronto, Ontario
M5X 1K6