Digests

Martinez v. Canada (Minister of Citizenship and Immigration)

IMM-8572-03

2003 FC 1341, Simpson J.

13/11/03

7 pp.

Motion by applicant for stay of removal order--As to serious issue, whether, when father being removed and children remaining in Canada, removals officer should defer removal pending outcome of application for landing from within Canada on humanitarian and compassionate grounds (H & C application) in order to give effect to Canada's obligations under Convention on the Rights of the Child (Convention), Art. 1--Immigration and Refugee Protection Act (IRPA), s. 3(3)(f) has incorporated Convention into domestic law to extent IRPA must be construed and applied in manner consistent with Convention--Contrary to Convention, Art. 1 to use provisions of IRPA to separate applicant and his children before decision made on H & C application as only during assessment of that application can best interests of children be fully addressed and treated as primary consideration--Therefore, serious issue in case at bar--As to irreparable harm, whether economic hardship and emotional distress which will be experienced by wife and daughter constitute irreparable harm--Convention stresses importance of family and states in Art. 7(1) that it is child's human right, as far as possible, to know and be cared for by parents--If IRPA applied in manner consistent with Convention, separation of parent and child by state without consideration of best interests of child would be ongoing infringement of child's human rights--Such infringement constitutes irreparable harm--Finally, requirement to apply IRPA in manner consistent with Convention means that, until H & C application decided, balance of convenience favours applicant--Stay granted--Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 3(3)(f)--Convention on the Rights of the Child, November 20, 1989, [1992] Can. T.S. No. 3, Arts. 1, 7(1).