Date: 20040707
Docket: IMM-5860-04
Citation: 2004 FC 968
Ottawa, Ontario, this 7th day of July, 2004
PRESENT: The Honourable Mr. Justice von Finckenstein
BETWEEN:
Fabian Francisco Seguel, Maria De Las Mercedes Neira,
And by their Litigation Guardian, Fabian Franciso Seguel, Franco Michel Seguel
Elias Genaro Seguel, Marcos Daniel Seguel, Alyelen Antonela Seguel,
Emilio Francisco Seguel, Matias Fabian Seguel and Alex Nahuel Seguel
Applicants
- and -
SOLICITOR GENERAL OF CANADA
Respondent
(Delivered orally and subsequently written for precision and clarification)
[1] This is an application for a deportation originally scheduled for July 2nd , 2004. Upon motion dated June 30, 2004, Pinard, J. ordered that the deportation was stayed until today to allow the parties to bring the necessary documents before the Court.
[2] The applicant is an Argentinian who fled to Canada with his wife and seven children. An eighth child was born in Canada.
[3] The applicant alleges bad faith by the Department of Citizenship and Immigration with regards to its refusal to defer removal subsequent to it receiving from applicant's counsel a letter from an Argentinian police officer attesting to the danger that the applicant will face in Argentina.
[4] As a result of the immigration officer's refusal to defer, a new PRRA application was filed on June 16th, 2004.
[5] The applicant also alleges irreparable harm if deported to the United States, asserting that he will be detained there, notwithstanding that he was not previously detained when he stayed in the US before coming to Canada.
[6] This is a difficult case in light of the allegations of bad faith. There has also been no cross-examination on the diverging affidavits.
[7] While I am not convinced that the applicant has met the conjunctive tripartite test in Toth v. Canada (M.E.I.) (1988), 86 N.R. 302, I am very troubled by the fact that the PRRA officer did not anywhere in her decision consider the interests of the children. Her only reference to them is as follows:
The applicants are a family consisting of a married couple with seven children. All Applicants are relying on the same evidence submitted therefore it will be dealt with as one decision applicable to all parties. (Applicant's record page 38)
[8] It is well established law that in the consideration of PRRA decisions, the best interest of children has to be assessed. (See Gonzalez v. Canada (M.C.I.), [2002] F.C.J. No. 671 (QL); Wu v. Canada (M.C.I.), [2002] F.C.J. No. 721 (QL)). This should take place before any deportation order is executed.
[9] Consequently, this application for a stay will be granted until the decision in response to the new PRRA application of June 16th, 2004 is rendered .
ORDER
1. This application for a stay is granted. No removal order against the applicants shall be executed until a decision has been rendered on the PRRA application which was filed on June 16th, 2004.
2. There will be no order as to costs.
"K. von Finckenstein"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5860-04
STYLE OF CAUSE: Fabian Francisco Seguel, Maria De Las Mercedes Neira, and by their Litigation Guardian, Fabian Franciso Seguel, Franco Michel Seguel Elias Genaro Seguel, Marcos Daniel Seguel, Alyelen Antonela Seguel, Emilio Francisco Seguel, Matias Fabian Seguel and Alex Nahuel Seguel
AND
SOLICITOR GENERAL OF CANADA
HEARD VIA TELECONFERENCE FROM OTTAWA AND TORONTO, ONTARIO
DATE OF HEARING: JULY 7, 2004
REASONS FOR ORDER
AND ORDER : von FINCKENSTEIN J.
DATED: JULY 7, 2004
APPEARANCES:
Osborne Barnwell FOR APPLICANTS
Lahdan Shahrooz FOR RESPONDENT
SOLICITORS OF RECORD:
Osborne G. Barnwell
Toronto, Ontario FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT