OTTAWA, Ontario, December 2, 2005
PRESENT: THE HONOURABLE PAUL U.C. ROULEAU
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] The applicant, a citizen of Tunisia, seeks a stay of a removal order enforceable December 5, 2005 pending the determination of his application for leave and judicial review of a negative decision dealing with his application for landing from within Canada on humanitarian and compassionate grounds (H & C).
[2] The applicant entered Canada from Tunisia on May 10, 2000 via the United States and made a refugee claim upon arrival. On January 31, 2002 it was determined that the applicant was not a Convention refugee and on April 4, 2002 leave to challenge this decision was denied.
[3] The applicant married a Canadian citizen in April 2002; a son was born to this union in February 2003.
[4] In May of 2002, the applicant filed an H & C application. The wife was sponsoring the applicant for an exemption. On June 11, 2003, after filing an application for a pre-removal risk assessment (PRRA), he was advised of the negative H & C decision in June 2004. It appears that the applicant's removal was deferred pending the determination of the H & C application. A second H & C application was submitted in August 2004 and the applicant's challenge of this decision is the outstanding matter which gives rise to this stay application.
[5] It is of note that in July 2004 the applicant was served with a direction to report for removal and he failed to appear and, on August 5, 2004, a warrant was issued for his arrest. On September 11, 2004, he was arrested on the basis of the outstanding warrant and removal arrangements were confirmed for the applicant to be deported on October 1, 2004. On September 28, 2004, the applicant requested a deferral of his removal on the basis of his outstanding second H & C application
[6] Though there were some other intervening applications filed, Mr. Hamdi remained in custody from the date of his arrest until released on May 31, 2005.
[7] The officer interviewed the parties and reviewed certain medical evidence and submissions filed by the parties. She observed that there were many misunderstandings over the years between them perhaps because of the applicant's wife's Attention Deficit Hyperactivity Disorder (ADHD). At one stage she entered a woman's shelter which offered transitional housing and treatment as well as counselling. During her stay the husband would visit periodically. She learned skills to better cope with her ADHD. It is also mentioned that the child is autistic and also suffers from ADHD and requires constant care. The officer carefully considered the best interests of the child and could not be convinced that if the father was to remain in Canada he could be of any assistance in the care of his son.
[8] The officer also noted that in the 41 months since their marriage, the parties have only cohabited 18 months; that there had admitted spousal abuse in the past as well as anger problems. When interviewing the wife, the officer was advised that the applicant has considerable difficulty controlling his temper. Commenting about the son, he had not only been diagnosed as autistic and but he also suffers from ADHD, she points out that he requires round the clock care that only his mother can provide; that the father has only spent 4 ½ months with his son. She noted that the child should not be subjected to constant arguments.
[9] She goes on to say that the applicant's wife should only focus on one major issue at a time and at this stage the care of her son is paramount. She has been assured that she has been accepted for long term assistance from Ontario Work and that she and her son will be placed in Ontario housing.
[10] The following factors contributed to the negative decision: the precarious marital relationship, the anger issues of the husband, the child's health, and perhaps the loss of security offered by public authorities.
[11] Counsel for the applicant suggests that the relationship between the applicant and his wife is not serene but that the wife's ADHD may cause some stress in the marriage.
[12] Counsel submits that the H & C officer erred in law by failing to properly assess the best interests of the applicant's son and did not adequately consider the hardship the child would suffer if separated from his father. Counsel further submits that the officer ignored the presumption that it is in the best interests of a child to live with both parents.
[13] The respondent points out that the applicant has failed to meet the tri-partite test for the granting of a stay of the removal order and further submits that the applicant was only in a position to file a second H & C applicant because of his failure to attend his own removal scheduled for July 2004. It is argued that the applicant does not come before the Court with clean hands.
[14] The respondent submits that nothing raised by the applicant supports an arguable case, and further submits that the officer gave sufficient weight to the best interest of the child. The respondent argues the Court should be satisfied that the officer's decision as reasonable, in that the father had very little contact with the son and could not contribute or assist in overcoming the medical hardships. The respondent submits that, in fact, his lack of temper control would be detrimental to the best interests of the child.
[15] The officer's assessment is supported by the facts and her findings are reasonable. I have not been convinced that a serious issue has been raised; I need not comment on irreparable harm or balance of convenience.
[16] Should judicial review of the H & C application be granted, there is no bar to the applicant pursuing the remedy through his wife who will remain in Canada.
ORDER
THIS COURT ORDERS that the application for stay is denied.
DEPUTY JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5976-05
STYLE OF CAUSE: NASREDDINE HAMDI v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, Ontario
DATE OF HEARING: November 28, 2005
REASONS FOR ORDER: ROULEAU D.J.
APPEARANCES:
| Krissina Kostadinov
|
|
| Rhonda Marquis
|
SOLICITORS OF RECORD:
| Waldman & Associates Barristers and Solicitors Toronto, Ontario
|
|
| John H. Sims, Q.C. Deputy Attorney General of Canada
|