Docket: IMM-7101-04
Toronto, Ontario, August 23rd, 2004
Present: The Honourable Mr. Justice von Finckenstein
BETWEEN:
ROSARIO DASILAO
Applicant
and
SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
(Delivered orally from the bench and subsequently written for precision and clarification)
[1] This is an application for stay of a removal order. The Applicant is slated to be removed on August 31, 2004.
[2] The Applicant to succeed must meet the threefold conjunctive test set out in Toth v. M.E.I., [1988] F.C.J. No. 587.
[3] The most substantial argument that the Applicant attempted to advance regarding both 'serious issue' and 'irreparable harm' is based on the alleged failure to properly assess the best interests of the child. The Applicant relies on the case of Martinez v. M.C.I., [2003] F.C.J. No. 1695.
[4] Without commenting on the sufficiency of Applicant's case, this application must be dismissed for failure to meet the balance of convenience leg of Toth, supra.
[5] The issue of the best interests of the child has been canvassed by both the IRB when it considered the Applicant's refugee application and the PRRA officer when considering the PRRA application. Both these decisions were not contested by the Applicant. The removals officer also considered this issue. No new evidence has been presented since those decisions were made, consequently the observations of the Court of Appeal in Selliah v. M.C.I., 2004 FCA 261 apply directly to this case.
Counsel says that since the appellants have no criminal record, are not security concerns, and are financially established and socially integrated in Canada, the balance of convenience favours maintaining the status quo until their appeal is decided.
I do not agree. They have had three negative administrative decisions, which have all been upheld by the Federal Court. It is nearly four years since they first arrived here. In my view, the balance of convenience does not favour delaying further the discharge of either their duty, as persons subject to an enforceable removal order, to leave Canada immediately, or the Minister's duty to remove them as soon as reasonably practicable: IRPA, subsection 48(2). This is not simply a question of administrative convenience, but implicates the integrity and fairness of, and public confidence in, Canada's system of immigration control.
[6] Accordingly, this application cannot succeed .
ORDER
THIS COURT ORDERS that this application for stay is denied.
"K. von Finckenstein"
J.F.C.
FEDERAL COURT
Name of Counsel and Solicitors of Record
DOCKET: IMM-7101-04
STYLE OF CAUSE: ROSARIO DASILAO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: AUGUST 23, 2004
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: VON FINCKENSTEIN J.
DATED: AUGUST 23, 2004
APPEARANCES BY:
Mr. Waikwa Wanyoike
FOR THE APPLICANT
Mr. Kareena R. Wilding
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Waikwa Wanyoike
Barrister & Solicitor
Toronto, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
FOR THE RESPONDENT
FEDERAL COURT
Date: 20040823
Docket: IMM-7101-04
BETWEEN:
ROSARIO DASILAO
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER