Date: 20000919
Docket: IMM-4829-00
BETWEEN:
VERONICA ARIAS MARIONA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is a motion on behalf of the Applicant for a stay of execution of the Deportation Order in respect of the Applicant.
[2] The Applicant suggests that there is a serious issue raised around the improper fettering of the discretion of the Removal Officer.
[3] The Applicant also suggests that there is a serious issue around the scope and extent of discretion to be enjoyed by the Removal Officer.
[4] The Applicant filed an application for leave and for Judicial Review of the decision of Greg Bennett Enforcement Officer dated September 5, 2000.
[5] In that decision Mr. Bennett says:
| "Please note that I have met with Ms. Arias at the Greater Toronto Enforcement Centre on a number of occasions during which time I have had the opportunity to review her case in detail. |
| Based on all the factors in her case including your letter of September 1, 2000, I do not find that there are compelling enough reasons for me to defer Ms. Arias' removal from Canada." |
[6] In my view, the Removal Officer has examined all elements that were before him. There is no evidence that the Officer neglected to consider any facts or was not provided with some evidence; even the Applicant's father appeared before him.
[7] The Applicant failed to demonstrate that the Removal Officer fettered his discretion or exercised his discretion improperly.
[8] I share the opinion of Justice Nadon in Simoes [IMM-2664-00 and IMM-2775-00 (June 16, 2000)] Justice Nadon says at page 6:
| "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 and C applications that were brought on a timely basis but have yet to be resolved due to backlogs in the system." |
[9] The Applicant failed to convince the Court that there is a serious issue to be tried.
[10] The Court also considered whether the Applicant will suffer irreparable harm, if deported. The Applicant demonstrated that her father faces serious medical conditions; nevertheless, this situation is not unusual and there are other resources available to the Applicant's father. A lot of Canadians face the same situation.
[11] The Applicant lived separated from her father from 1987 until 1998, after spending about two years in the United States. She lived with her father only for the last two years, and she also has one brother and one sister living in Canada older than her, and that are totally capable of taking care of their father given that they seem to be established in Canada, which is not the case for the Applicant.
[12] The arguments raised by the Applicant's brother, that he is not available to support his father because his marriage is in danger, should be rejected.
[13] The Court has not had the benefit to hear from the Applicant's sister herself about what is her position, even though she lives in Toronto.
[14] I also share the opinion expressed by Justice Gibson in [Robinson v. Canada [1994] F.C.J. No 52 DRS 94-05677, IMM-7429-93.] at paragraph 7:
| "I am sympathetic to the argument that the break up of a family unit produces substantial hardship which, in some circumstances, but not all, approaches the level or reaches the level of irreparable harm to the family unit. That is not the test. The issue, of course, is irreparable harm to the Applicant." |
[15] The Applicant failed to convince the Court that the hardship suffered by the Applicant's father amounts to irreparable harm to the Applicant.
[16] I am convinced that the balance of convenience favours the Respondent that a removal order must be executed as soon as reasonably practicable.
[17] For these reasons, this application for a stay is dismissed.
"Pierre Blais"
J.F.C.C.
Toronto, Ontario
September 19, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-4829-00 |
| STYLE OF CAUSE: VERONICA ARIAS MARIONA |
Applicant
-and-
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
| DATE OF HEARING: MONDAY, SEPTEMBER 18, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
REASONS FOR ORDER AND
| ORDER BY: BLAIS J. |
| DATED: TUESDAY, SEPTEMBER 19, 2000 |
APPEARANCES BY: Mr. Lorne Waldman
For the Applicant
Mr. Stephen H. Gold
For the Respondent
SOLICITORS OF RECORD: Lorne Waldman
Barrister and Solicitor
Jackman, Waldman & Associates
281 Eglinton Avenue East
Toronto, Ontario
M4P 1L3
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20000919
Docket: IMM-4829-00
Between:
VERONICA ARIAS MARIONA
Applicant
-and-
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
| REASONS FOR ORDER |
AND ORDER