Federal Court Decisions

Date: 20020506

Docket: IMM-1349-02

Neutral citation: 2002 FCT 511

BETWEEN:

JESUS MANUEL ELIZONDO GONZALEZ

OLIMPHYA ADRIANA HERMOSILLO DE GONZALEZ

MANUEL ADRIAN ELIZONDO HERMOSILLO

and GRETTA ELIZONDO HERMOSILLO

                                                                                                                                                      Applicants

                                                                                 and

                                                  THE MINISTER OF CITIZENSHIP

                                                              AND IMMIGRATION

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

MacKAY J.

[1]                 After hearing counsel for the parties by telephone conference I adjourned sine die the applicants' motion for an interim order, pursuant to s. 18.2 of the Federal Court Act, R.S.C. 1985, c. F-7 as amended, or pursuant to the Court's inherent jurisdiction, staying the operation of the execution of a removal order made against the applicants, pending determination of the application for leave and for judicial review filed in this matter. The Order adjourning the motion provides that it is returnable at the request of either counsel, on short notice, and that this Court remains seised of the matter.

[2]                 The applicants are citizens of Mexico, except for the younger child who was born in Canada, after the others arrived in this country in March 2000.

[3]                 In April 2000, the applicants submitted refugee claims but they were found not to be Convention refugees in October 2001. Thereafter, they applied for a Post Claim Determination Review, which application was denied in March 2002.

[4]                 At that stage, conditional departure orders, earlier issued to them, became effective and the applicants were advised to confirm their departures from Canada on or before midnight, April 17, 2002, or thereafter be dealt with as subject to deportation orders. They did not leave Canada as directed, and they have now been summoned to report for a pre-removal interview on May 6, 2002.

[5]                 In the course of the hearing, counsel for the Minister suggested that consideration of the application might be premature since there were as yet no arrangements for deportation of the applicants. Counsel for both parties did address the usual aspects of the test for a stay as outlined in Toth v. Canada(Minister of Citizenship and Immigration) (1988), 6 Imm L.R. (2d) 123, 86 N.R. 302 (F.C.A.). After hearing from counsel, the Court raised two questions of concern, about the absence of consideration of the best interests of the applicant children, and about the possibility of an adjournment of the motion for a stay at this stage.

[6]                 I indicated to counsel that for purposes of considering this application to stay proceedings in this matter I consider there are serious issues raised by the applicants' application for leave and for judicial review of the decision of the Post Claims Determination Officer ("PCD officer"), matters not yet considered by the Court pending the perfection of that application and the response of the respondent. Further, I indicated that, while the notes of the PCD officer, concerning her decision to deny their claim, included no assessment of the best interests of the children, a matter which may not have been before the PCD, this Court had to be concerned that there was as yet no assessment of the best interests of the applicant children who, it appears, are to be removed from Canada. In my opinion, the principle here applicable is the importance of considering the interests of children which underlies the decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.

[7]                 After hearing counsel and briefly considering submissions made in the course of the hearing, and having read written submissions included in records of the parties, I ordered that the motion be adjourned sine die in the absence of any decision on arrangements to remove the applicants, and of any assessment of the best interests of the children involved. The Order adjourning the matter directs that it is returnable on short notice at the request of either counsel, and that I am seised of the matter.

                                                                                                                              (signed) W. Andrew MacKay

                                                                                                                  _________________________

                                                                                                                                                           JUDGE

OTTAWA, Ontario

May 6, 2002.