Boniowski v. Canada (Minister of citizenship and immigration)
Court headnote
Boniowski v. Canada (Minister of citizenship and immigration) Court (s) Database Federal Court Decisions Date 2003-09-25 Neutral citation 2003 FC 1101 File numbers IMM-7113-03 Decision Content Date: 20030925 Docket: IMM-7113-03 Citation: 2003 FC 1101 Toronto, Ontario, this 25th day of September, 2003 Present: The Honourable Mr. Justice O'Reilly BETWEEN: MARCOS DAVID BONIOWSKI and SALOME CECILIA ABALLAY Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR ORDER AND ORDER [1] The applicants have been ordered to leave Canada for Argentina on September 30, 2003. They have asked the Court to stay the execution of that order pending judicial review of the decision of an immigration officer not to defer removal any further. [2] I have concluded that the applicants have satisfied the three-part test for a stay and, therefore, that a stay is appropriate in the circumstances. I. Serious Issue [3] The applicants argue that the officer failed to take adequate account of the best interests of their 5-year-old daughter, Natalia. In the alternative, they argue that the officer, having considered Natalia's interests, failed to explain why she would not be unduly harmed by immediate removal. [4] The parties agree that the officer has only a limited degree of discretion to defer removal: Simoes v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 936. However, an officer is obliged to give some consideration to a Canadian-born child's best interes…
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Boniowski v. Canada (Minister of citizenship and immigration) Court (s) Database Federal Court Decisions Date 2003-09-25 Neutral citation 2003 FC 1101 File numbers IMM-7113-03 Decision Content Date: 20030925 Docket: IMM-7113-03 Citation: 2003 FC 1101 Toronto, Ontario, this 25th day of September, 2003 Present: The Honourable Mr. Justice O'Reilly BETWEEN: MARCOS DAVID BONIOWSKI and SALOME CECILIA ABALLAY Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR ORDER AND ORDER [1] The applicants have been ordered to leave Canada for Argentina on September 30, 2003. They have asked the Court to stay the execution of that order pending judicial review of the decision of an immigration officer not to defer removal any further. [2] I have concluded that the applicants have satisfied the three-part test for a stay and, therefore, that a stay is appropriate in the circumstances. I. Serious Issue [3] The applicants argue that the officer failed to take adequate account of the best interests of their 5-year-old daughter, Natalia. In the alternative, they argue that the officer, having considered Natalia's interests, failed to explain why she would not be unduly harmed by immediate removal. [4] The parties agree that the officer has only a limited degree of discretion to defer removal: Simoes v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 936. However, an officer is obliged to give some consideration to a Canadian-born child's best interests: Harry v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1727. [5] In this case, the officer appears to have considered Natalia's interests. She reviewed the documents tendered in support of the family's humanitarian and compassion application, a psychological assessment, and reports on the living conditions and legal rights of children in Argentina. In addition, she met with the family on four occasions. The officer seems genuinely to have accorded the family fair and compassionate consideration, which is to be commended. [6] However, the officer's only response to the family's submissions was a letter dated September 12, 2003, in which she stated: "Having considered all of your submissions from both deferral requests, I do not feel that deferral of the execution of the removal order is appropriate in the circumstances of this case". In my view, the applicants have raised a serious issue whether the officer's reasons were adequate, particularly in light of the psychologist's conclusion that Natalia's removal from Canada and separation from her surroundings and extended family would "be likely to adversely affect her social and emotional development". II. Irreparable Harm [7] This case involves the effect on a Canadian born child of removal from Canada. Removing the child while that issue is explored before this Court would render nugatory any legal remedy that might ultimately be available. Such circumstances constitute irreparable harm: Melo v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 403. III. Balance of Convenience [8] In light of the above, the balance of convenience lies in allowing the applicants to remain in Canada while pursuing their legal remedies. ORDER THIS COURT ORDERS that: 1. The removal of the applicants from Canada is stayed until their underlying application for leave and judicial review is finally disposed of. "James W. O'Reilly" J.F.C. FEDERAL COURT NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: IMM-7113-03 STYLE OF CAUSE: MARCOS DAVID BONIOWSKI and SALOME CECILIA ABALLAY Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent PLACE OF HEARING: TORONTO, ONTARIO DATE OF HEARING: SEPTEMBER 22, 2003 REASONS FOR ORDER AND ORDER BY: O'REILLY J. DATED: SEPTEMBER 25, 2003 APPEARANCES: Mr. Roger Rowe For the Applicants Mr. Stephen Jarvis For the Respondent SOLICITORS OF RECORD: Mr. Roger Rowe Barrister & Solicitor Toronto, Ontario M3J 2G2 For the Applicants Morris Rosenberg Deputy Attorney General of Canada For the Respondent FEDERAL COURT Date: 20030925 Docket: IMM-7113-03 BETWEEN: ELEMER BURAI Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR ORDER AND ORDER
Source: decisions.fct-cf.gc.ca