CITIZENSHIP AND IMMIGRATION |
Immigration Practice |
Harry v. Canada (Minister of Citizenship and Immigration)
IMM-5248-00
Gibson J.
20/10/00
8 pp.
Application for stay of execution of removal order outstanding against applicants--Applicants, husband and wife, both from Trinidad--Have one child born in Canada--Refugee claims rejected as abandoned--Application for leave to apply for landing from within Canada on humanitarian and compassionate grounds filed in September 1999--Removals officer conveying decision not to defer removal on October 4, 2000--To succeed on application for stay, applicants must establish serious issue to be tried, irreparable harm if stay not granted, balance of convenience favours granting of stay to applicants over respondent's interest in executing statutory responsibility under Immigration Act, s. 48 to execute removal order "as soon as reasonably practicable"--Respondent's obligation to execute removal order "as soon as reasonably practicable" providing degree of discretion to removals officer to defer removal in appropriate circumstances--Whether, in all circumstances of matter, decision to refuse to defer removal reasonably open--Visa officer did not ignore Canadian-born child--Respondent far from diligent in pursuit of applicants' H & C application--On particular facts of matter and against relatively low threshold test, serious issue to be tried as to whether removals officer's decision not to defer removal reasonably open in light of Canada's international commitments regarding children's rights--If applicants returned to Trinidad, Canadian-born child must either go with parents to Trinidad or be left in Canada--Whichever course of action might be followed, irreparable harm would result to child--Balance of convenience favouring applicants--Application allowed--Immigration Act, R.S.C., 1985, c. I-2, s. 48.