Date: 20001003
Docket: IMM-3813-00
Ottawa, Ontario, the 3rd day of October 2000
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
STEVE DAVIS AND
ANDREA TAYLOR
Applicants
and
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER
PELLETIER J.
[1] This is a transcription of oral reasons for judgment delivered on July 21, 2000 which have been edited for grammar and readability.
[2] The applicant, Mr. Steve Davis (hereinafter "the applicant"), is subject to a deportation order made in 1992 which was appealed but which appeal was abandoned. He was found to be a danger to the public in 1996, a finding which was not challenged. Following the making of the deportation order against the applicant in 1992, he was convicted of other serious offences.
[3] The decision which is the object of the underlying Notice of Application is the refusal of the Removals officer to stay the deportation of the applicant to allow him to file an application for humanitarian and compassionate consideration ("H & C") pursuant to subsection 114(2) of the Immigration Act (the "Act"). It is argued on behalf of the applicant that the Removals officer fettered his discretion by applying a test with no statutory basis and that he came to a speculative decision with respect to the applicant's relationship with his children. Furthermore, it is alleged that there is an issue as to whether the applicant can be deported before the interests of his children are considered. The disruption to this family and the practical improbability of the applicant being able to return to Canada are said to constitute irreparable harm. Finally, since the applicant is in custody and will likely remain so, it is said that the balance of convenience favours a stay, as the public interest is protected.
[4] In reference to the serious issue to be tried, it is my view that some of the issues raised would be serious issues were they raised before an adjudicator or designated officer deciding an application under subsection 114(2) of the Act. I do not believe that they are serious issues a Removals officer is called upon to decide. I adopt the reasons of Mr. Justice Nadon in Simoes v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 936 which I will not repeat here. I would add to them to this extent. The Immigration Act and the jurisprudence of this Court have established a series of checkpoints at which various interests are assessed and weighed. At the conclusion of that process is the removal process itself. In my view, it was not the intention of Parliament in providing that removal be effected as soon as reasonable practicable to put upon the Removals officer the obligation to consider all of the factors which are to be raised and considered in the steps preceding removal. It is not necessary for these purposes to determine the limits of the Removals officer discretion, other than to say that only once has it been held to include the necessity of deferral to permit an H & C application to be made. In Naredo v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. 1250, a stay was granted to permit an H & C application to be made because the applicant was a former secret policeman who faced torture and death at the hands of his former colleagues upon his return to Chile. That fact is absent here.
[5] In Saini v. Canada (Minister of Citizenship and Immigration), [1998] 4 F.C. 325, (1998), 150 F.T.R. 148, Mr. Justice Gibson found that the Removals officer had the discretion to consider whether a risk assessment had been undertaken. That case was also predicated upon the risk of torture and inhumane treatment. In the present case, the issues raised are issues which would properly be raised before an H & C officer. The fact that the applicant has not taken the steps to put the matter before an H & C officer does not require the exercise of a Removal officer's discretion to permit the applicant to make that application now.
[6] As to the issue of the children's interest being affected before there is an adjudication on the merits, this also arises because the applicant has not taken the steps to put the issue before the officer with the authority to decide it. It is unfortunate that the children are prejudiced by the conduct of the parents but as Justice Nadon points out in Simoes, supra, even the Convention on the Rights of Children does not prohibit but in fact contemplates the children might be separated from their parents by state action. The children's interest taken by themselves can no more be an impediment to deportation than they were to imprisonment. Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817, (1999), 243 N.R. 22, did not decide that the children's interest were paramount, only that they must be considered by the H & C officer. To the extent that the Removals officer was required to consider the interest of the children, a question which I do not decide, I find that he did consider them.
[7] With respect to the allegation that the Removals officer fettered his discretion by applying a non statutory test, I adopt the submissions of counsel for the Respondent. In the end, because the test is conjunctive, I do not need to consider irreparable harm of balance of convenience.
[8] The application for a stay is dismissed.
"J.D. Denis Pelletier"
Judge