Date: 20020514
Docket: IMM-1995-02
Neutral citation: 2002 FCT 546
BETWEEN:
YI FENG WU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] These reasons concern a stay, granted on May 3, 2002, of a removal order scheduled to be effected on Monday, May 6, 2002. The stay was granted, in essence because of my conclusion, after hearing counsel in a telephone conference, that there had not been consideration of the best interests of Mr. Wu's children, as those might be affected by his removal from Canada at this time.
[2] Mr. Wu, his wife, and one child born in Hong Kong en route to Canada, arrived in this country in 1990 from the People's Republic of China. Upon arrival he and his wife made a refugee claim. He was determined not to be a Convention refugee on June 7, 1991 and a conditional removal order was then issued to him. His wife and daughter were found to be Convention refugees in March 1993.
[3] His wife then made application for permanent residence status in Canada and she included Mr. Wu as a dependant in that application. The application for inland processing was approved in principle in 1993.
[4] In late 1994 Mr. Wu and a business partner had an argument over their business. A fight developed and Mr. Wu was ultimately arrested and charged with assault. He was given a conditional discharge. That led Citizenship and Immigration to determine initially that he was not admissible to Canada because of a criminal record, and to advise his wife to file a new application for landing within Canada for herself and her daughter, i.e., excluding her husband.
[5] Mr. Wu and his wife had two children born in Canada. In 1996, because of marital difficulties, they were living apart, but Mr. Wu remained close and in continuous contact with his family. It is said that he continued to provide substantial care for the children while his wife worked, and he was not authorized to work. In July 1996 his wife advised Immigration authorities to process her application for landing excluding her husband. Shortly thereafter Immigration officers advised that the initial ruling about his eligibility was changed and they would continue to process her application including her husband. Mr. Wu's wife now claims some confusion at that time, but in any event she applied for a divorce in September 1996, and the final decree was granted in February 1997. Despite this, Mr. Wu continued his role as a primary caregiver for his children with whom he remained close. In December 2000 he was reconciled with his family, and he and his wife resumed cohabitation together.
[6] In May 2001 Mr. Wu received a letter directing him to attend a pre-removal interview on June 12, 2001. He and his wife arranged to be married again, a step accomplished on June 13, 2001 and his wife initiated a new application to sponsor his landing from within Canada. Mr. Wu also filed an in-Canada humanitarian and compassionate (h & c) application with his wife's sponsorship application. Following the filing of his application for landing, in June, 2001 counsel wrote on his behalf to the Immigration department requesting deferral of his removal pending determination of the in-Canada h & c application. No response was made to that request. No decision was made on his h & c application when this stay application was heard.
[7] In April 2002 Mr. Wu obtained full-time employment with flex hours which permitted him to take his children to school and pick them up at the end of the day. On April 25, 2002 he was served with a notice to attend a pre-removal meeting on April 29, 2002. He attended the meeting with counsel. The removals officer considered his circumstances and the time considered necessary to wind up his affairs before removal, which was then scheduled for Monday, May 6, 2002. By her affidavit, the removals officer makes clear that at that meeting, while she was concerned to arrange his removal, there was no objection to the removal date then proposed, that Mr. Wu agreed to report to Vancouver Airport for removal as directed. Neither he nor his counsel then mentioned the request made in June 2001 to defer removal pending the outcome of his h & c application. Nor did they make any new request for such a deferral.
[8] On May 1st an application was filed for leave and for judicial review seeking an order in the nature of mandamus to compel the Minister or his delegate to decide on the h & c application. On the same day an application was filed for a stay of the removal process pending determination of the application for judicial review.
[9] Having heard counsel and considered their written submissions I granted a stay of execution of the removal of the applicant. In my view, the application for leave and for judicial review, not yet perfected or considered, raises a sufficiently serious question for purposes of considering the application for a stay pending a determination by this Court.
[10] Further, I am satisfied that in the circumstances irreparable harm is established where, on the evidence before me, it seems clear that there was no full consideration of the best interests of Mr. Wu's children, one of whom is a permanent resident and the other two are Canadian-born, as their interests may be affected by his removal at this stage. I accept that the removals officer appears to have been aware of the children and that Mr. Wu did indicate he would have to be concerned to make some arrangements and provide instructions for supervision of his children if he were to be removed. I accept also that the removals officer may not have been directly requested by Mr. Wu or his counsel at the pre-removal meeting to consider carefully the best interests of the children. Nevertheless, I find those interests were not here considered and the irreparable harm in this case to both Mr. Wu and his children, as well as his spouse, arises if he were to be removed without those interests being considered. The opportunity for consideration would then be lost even if, at some future time that is uncertain, he were re-admitted to Canada.
[11] I accept that an outstanding h & c application is no basis in itself for finding irreparable harm, nor is the fact that there are children, including some Canadian-born. Neither of those factors alone may warrant the grant of a stay application. I do, however, read the Supreme Court of Canada's decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, and the more recent decision of the Federal Court of Appeal in Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125, [2002] F.C.J. No. 457 (QL) as indicating that an important factor in decisions affecting the status of non-Canadians under the Immigration Act, R.S.C. 1985, c. I-2, as amended is the best interests of any children who may be affected by the decision. In my view, that principle extends to requiring removals officers to give full and fair consideration to those interests where that has not previously been done.
[12] In the result, the application for a stay was granted pending the determination, whichever may first occur, of
i) a full and fair assessment of the best interests of the applicant's children as those may be affected by the applicant's removal from Canada at this time; or
ii) the determination of the application for leave and for judicial review herein filed; or
iii) the determination of the applicant's outstanding application pursuant to s. 114 of the Immigration Act and with his wife's sponsorship, for landing from within Canada on humanitarian and compassionate considerations.
(signed) W. Andrew MacKay
______________________________
JUDGE
OTTAWA, Ontario
May 14, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-1995-02
STYLE OF CAUSE: YI FENG WU
v.
M.C.I.
MOTION HEARD BY TELECONFERENCE BETWEEN OTTAWA AND VANCOUVER
DATE OF HEARING: MAY 3, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE MACKAY
DATED: MAY 14, 2002
APPEARANCES:
MR. PETER D. LARLEEFOR PLAINTIFF
MR. PETER BELLFOR DEFENDANT
SOLICITORS OF RECORD:
LARLEE & ASSOCIATESFOR PLAINTIFF
Vancouver, B.C.
Morris RosenbergFOR DEFENDANT
Deputy Attorney General of Canada