Simoes v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 15668 (FC)
http://canlii.ca/t/43×4
• Citizen of Jamaica came to Canada in 1992
• Spousal sponsorship broke down and she later claimed refugee status and was denied
• Viewed as not cooperative with respect to removal (multiple illnesses, failures to show up for removal interviews)
• Has two Canadian children
• Eventually submitted H&C application after having failed to show up for multiple appointments, and some four months after having been informed of her impending removal
• Applicant requests stay of removal on the following basis:
o [1] The Applicant, a citizen of Jamaica, brings a motion for an order staying her deportation, pending the determination of her H & C application, or pending the consideration of her application to commence judicial review for the following relief: a declaration requiring the Respondent to consider the best interests of the Applicant’s two Canadian children prior to any determination to execute the removal order against the Applicant, or an order quashing the Removal Officer’s decision not to defer her removal, pending a consideration of her children’s interests.
• This case touches on a number of issues: effect of pending H&C application on removal, as well as discretion of removals officer in making removals decision (does s/he have to consider best interests of the children, and to what extent)
o Clear that simply having a pending H&C application doesn’t mean stay application will be granted
o Moreover, holds that substantive review of BIOC need not be undertaken by a removals officer when considering deferral of removal request:
o [11] I am in complete agreement with the view expressed by Dawson J. In my opinion, Baker does not require a removal officer to undertake a substantive review of the children’s best interests, including the fact that the children are Canadian. This is clearly within the mandate of an H & C officer. To “read in” such a mandate at the removals stage would, in effect, result in a “pre H & C” application, which in my opinion, is not what the law requires. Section 48 of the Immigration Act provides the following: “Subject to sections 49 and 50, a removal order shall be executed as soon as reasonably practicable.” Sections 49 and 50 deal with statutory stays of execution in certain defined circumstances; for instance, where an applicant has filed an appeal which has yet to be heard and disposed of, or where there are other proceedings.
o [12] In my opinion, the discretion that a removal officer may exercise is very limited, and in any case, is restricted to when a removal order will be executed. In deciding when it is “reasonably practicable” for a removal order to be executed, a removal officer may consider various factors such as illness, other impediments to travelling, and pending H & C applications that were brought on a timely basis but have yet to be resolved due to backlogs in the system. For instance, in this case, the removal of the Applicant scheduled for May 10, 2000 was deferred due to medical reasons, and was rescheduled for May 31, 2000. Furthermore, in my view, it was within the removal officer’s discretion to defer removal until the Applicant’s eight-year old child terminated her school year.
However, there is other case law suggesting that BIOC have to be considered – see the Munar line of case-law, discussed in Mauricette v. Canada (Public Safety and Emergency Preparedness), 2008 FC 420 (CanLII), http://canlii.ca/t/1wgpx, although not rising to the level of a substantive review of BIOC
• With respect to a serious issue, the court finds that there is a serious issue, as SCC had granted leave in another case which implicated children’s rights on deportation (not an immigration case)
o Given the low-threshold, finds that serious issue prong is just met
o **This should be distinguished from Forde, described above, where there was no underlying JR; the applicants there were seen to be simply waiting for more favourable jurisprudence to launch an appeal **
• However, there is no irreparable harm
o Hardship basically amounted to preferring life in Canada to that of Jamaica
o Evidentiary record here was weak – was all conjecture and speculation
• Doesn’t consider balance of convenience
• Case should be read with Wang 2001