Date: 20000427
Docket: IMM-1512-00
BETWEEN:
HAMILTON WILTSHIRE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.:
[1] These written reasons confirm the oral decision made by me on a telephone conference call on March 24, 2000 at which time I granted the applicant a stay of the execution of a departure order made on May 28, 1997 and scheduled for Monday, March 27, 2000.
[2] After the applicant was issued a deportation order, Canadian officials, on June 12, 1997, requested from the Consulate of Guyana in Toronto, a travel document for Mr. Wiltshire because he had lost his passport. It was only on March 3, 2000, the Consulate of Guyana advised Canadian officials Mr. Wiltshire's travel document was ready to be picked up. The emergency certificate issued to him by the Consulate is dated February 15, 2000 and is valid February/March 2000.
[3] The applicant is married to a Canadian citizen. They started living together on July 1, 1997 and have been living together continuously ever since. On July 20, 1999, they were married. They have three children.
[4] The applicant's spouse deposed at paragraph 14 of her affidavit:
| 14. On March 23, 2000, I had a telephone conversation with M. Danby, the Expulsions Officer in charge of my husband's file. I asked her if my husband's removal could be delayed, because I had submitted an application to sponsor him. She told me that the sponsorship had not gone through, and without the landing there was nothing she could do. |
[5] The sole reason for my granting the stay was that I could not distinguish the case before me with decided by Simpson J. in Poyanipur v. Canada (M.E.I.), [1995] F.C.J. No. 1785. Examining section 48 of the Immigration Act which provides that "a removal order shall be executed as soon as reasonably practicable", Simpson J. came to the conclusion that removal officers have some discretion under the Immigration Act concerning, amongst other things, the pace of the removal once they become involved in making deportation arrangements. In that case, the removal officer took the view she lacked any discretion which Justice Simpson found to be an error of law. She went on to find irreparable harm in that the separation of spouses in genuine marriages entails hardship and it was inconceivable in the circumstances before her that the Canadian spouse would follow her husband. She also found balance of convenience favouring the applicant.
[6] As noted, the case before me is, in my view, indistinguishable from Poyanipur, supra. In the case before me, the removal officer indicated she had no discretion in making removal arrangements; this is not correct because she does have some limited discretion. On irreparable harm and balance of convenience, the circumstances before me are quite identical to the ones before Simpson J.
[7] For these reasons, a stay is granted until a decision has been made on the applicant's leave request.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
APRIL 27, 2000