IMM‑3395‑05
2005 FC 1180
Nydia Munar (Applicant)
v.
The Minister of Citizenship and Immigration and The Minister of Public Safety and Emergency Preparedness (Respondents)
Indexed as: Munar v. Canada (Minister of Citizenship and Immigration) (F.C.)
Federal Court, de Montigny J.—Ottawa and Toronto (teleconference), August 5; Ottawa, November 9, 2005.
Citizenship and Immigration — Exclusion and Removal — Removal of Visitors — Motion for stay of applicant’s removal pending determination of humanitarian and compassionate (H&C) application, consideration of judicial review applica-tion of removals officer’s decision — Applicant entering Canada as visitor in 1996, here without status since 1997 — Applicant having two Canadian‑born children, seeking to have removal deferred on basis children would suffer severe hardship if separated from her — Removal officer refusing deferral, despite knowledge children having no travel documents and applicant seeking sole custody, on basis obligated under Immigration and Refugee Protection Act, s. 48 to carry out removal as soon as reasonably practicable — Act, s. 48 leaving removal officer with little discretion, H&C application not automatically barring execution of removal order — However, some consideration of best interests of child required when parent(s) to be removed — That consideration less thorough than that in H&C application, requiring short‑term best interests of child be considered — Here, nobody prepared to care for children besides applicant, who could not take children with her until sole custody granted — Criteria to obtain stay met: serious issue raised; irreparable harm established; balance of convenience favouring applicant — Motion allowed.
This was a motion for an order staying the applicant’s removal from Canada pending the determination of her humanitarian and compassionate (H&C) application, or pending the consideration of her application for judicial review of a removal officer’s decision not to defer her removal.
The applicant, a citizen of the Philippines, entered Canada in 1996 as a visitor. Her visitor’s visa expired in 1997 but she remained in Canada without any status. The applicant was denied refugee status in 2000, was found not to be a member of the post‑determination refugee claimants in Canada class in March 2002, and then failed to report for a removal interview in April 2002. Her H&C application was subsequently filed. In the meantime, the applicant met a man with whom she had two Canadian‑born children. On several occasions, the applicant’s removal had to be rescheduled because she had failed to apply for passports for her children. On May 31, 2005, the applicant sought to have her removal, scheduled for June 3, 2005, deferred on the basis that she wanted to take her children with her as they would suffer severe hardship if separated from her. The removal officer refused to defer the applicant’s removal, despite knowing that the children had no travel documents and that the applicant was seeking sole custody of the children so that they could travel with her, stating that she had an obligation under section 48 of the Immigration and Refugee Protection Act to carry out removal orders as soon as reasonably practicable.
The applicant argued that the removal officer did not demonstrate that she was alive, alert and sensitive to the best interests of the children, and did not make any inquiries as to what would happen to the children if they could not leave with their mother.
Held, the motion should be allowed.
There is general agreement that section 48 leaves the removal officer with very little discretion, and that the mere existence of an H&C application cannot bar the execution of a removal order. The purpose of the Convention on the Rights of the Child, which is not part of Canadian domestic law but may be used as an aid in interpreting it, is to protect the child’s well‑being, not to prevent a government from deporting or imprisoning a parent. As such, the filing of an H&C application cannot automatically bar the execution of a removal order, even if it results in the separation of a child from his or her parent(s). Similarly, removal officers cannot be required to undertake a full substantive review of the humanitarian circumstances that are to be considered as part of an H&C assessment. However, some consideration must be given to the best interests of the child when one or both of his or her parents are to be removed from the country. This analysis will be less thorough than the full‑fledged analysis required in the context of an H&C application. The removal officer should consider the short‑term best interests of the child, such as whether provisions have been made for leaving a child in the care of others in Canada when parents are to be removed. Here, nobody seemed prepared to care for the applicant’s children besides the applicant, who could not take her children with her as she did not yet have sole custody. The criteria to obtain a stay were thus met. The applicant raised a serious issue. Her children would suffer irreparable harm if she was removed. And the balance of convenience favoured the applicant.
statutes and regulations judicially
considered
Convention on the Rights of the Child, November 20, 1989, [1992] Can. T.S. No. 3, Art. 1.
Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3(3)(f), 25, 48, 49, 50.
cases judicially considered
applied:
Toth v. Canada (Minister of Employment and Immigration) (1988), 6 Imm. L.R. (2d) 123; 86 N.R. 302 (F.C.A.); Wang v. Canada (Minister of Citizenship and Immigration), [2001] 3 F.C. 682; 204 F.T.R. 5; 13 Imm. L.R. (3d) 289; 2001 FCT 148.
considered:
Martinez v. Canada (Minister of Citizenship and Immigration), 2003 FC 1341; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; (1999), 174 D.L.R. (4th) 193; 14 Admin. L.R. (3d) 173; 1 Imm. L.R. (3d) 1; 243 N.R. 22; De Guzman v. Canada (Minister of Citizenship and Immigration), [2005] 2 F.C.R. 162; (2004), 245 D.L.R. (4th) 341; 29 Admin. L.R. (4th) 291; 124 C.R.R. (2d) 189; 257 F.T.R. 290; 40 Imm. L.R. (3d) 256; 2004 FC 1276; Simoes v. Canada (Minister of Citizenship and Immigration) (2000), 187 F.T.R. 219; 7 Imm. L.R. (3d) 141; [2000] F.C.J. No. 936 (QL) (F.C.T.D.); Francis v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 31 (T.D.) (QL); Hawthorne v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 555; (2002), 222 D.L.R. (4th) 265; 24 Imm. L.R. (3d) 34; 297 N.R. 187; 2002 FCA 475.
referred to:
Francis v. The Queen, [1956] S.C.R. 618; (1956), 3 D.L.R. (2d) 641; 56 DTC 1077; Capital Cities Communications Inc. et al. v. Canadian Radio‑Television Commn., [1978] 2 S.C.R. 141; (1977), 81 D.L.R. (3d) 609; 36 C.P.R. (2d) 1; 18 N.R. 181; John v. Canada (Minister of Citizenship and Immigration) (2003), 231 F.T.R. 248; 2003 FCT 420; Mensah v. Canada (Minister of Citizenship and Immigration), 2004 FC 78; Buchting v. Canada (Minister of Citizenship and Immigration), 2003 FC 953; Parsons v. Canada (Minister of Citizenship and Immigration), 2003 FC 913; Langner v. Canada (Minister of Employment and Immigration) (1995), 29 C.R.R. (2d) 184; 184 N.R. 230 (F.C.A.); Boniowski v. Canada (Minister of Citizenship and Immigration) (2004), 44 Imm. L.R. (3d) 31; 2004 FC 1161.
authors cited
Citizenship and Immigration Canada. Immigration Manual: Inland Processing (IP). Chapter IP 5: Immigrant Applications in Canada Made on Humanitarian or Compassionate (H&C) Grounds. Ottawa: Citizenship and Immigration, loose‑leaf.
MOTION for an order staying the applicant’s removal pending the determination of her H&C application or the consideration of her judicial review application of the removal officer’s decision not to defer her removal. Motion allowed.
appearances:
Geraldine MacDonald for applicant.
Tamrat Gebeyehu for respondents.
solicitors of record:
Geraldine MacDonald, Toronto, for applicant.
Deputy Attorney General of Canada for respondents.
The following are the amended amended reasons for order rendered in English by
[1]de Montigny J.: The applicant, a citizen of the Philippines, has brought a motion for an order staying her removal from Canada pending the determination of her H&C [humanitarian and compassionate] application, or pending the consideration of her application to commence judicial review of the decision dated June 1, 2005 of the removal officer, Mrs. Gina Farrauto, not to defer the removal of the applicant.
[2]The removal was originally set to proceed on June 3, 2005. After having heard counsel for the parties by telephone conference in Ottawa on that same day, I ordered a temporary stay and asked for further written submissions with respect to the application of international conventions ratified by the Government of Canada in the context of removal orders made by Canada Border Services Agency (CBSA) officers.
[3]On August 5, 2005, I heard counsel for both parties by way of teleconference. They provided me with an update on the situation of the applicant, and argued at full length the proper role of the removal officers, and in particular whether and to what extent they should take into consideration the best interests of a child whose parent is to be removed from the country. At the end of the hearing, I ordered the stay to be extended until such time as I could rule on it definitively. After having reviewed and considered the submissions of both parties and the situation of the applicant, I have now decided that the stay should be granted. The following are my reasons for that order.
Background
[4]The applicant entered Canada as a visitor in September 1996. She left behind her a husband and six children, claiming that her husband was abusive and beat her regularly. Her six‑month visitor’s visa was extended a further six months, that is until September 1997. She then remained in the country without any status.
[5]She made a refugee claim on July 13, 1999 and was issued a conditional departure order on December 23, 1999. She was found by the Immigration and Refugee Board not to be a refugee on September 29, 2000, essentially because she did not avail herself of state protection despite the fact that it was available, because she had an internal flight alternative and because the Board did not find her credible.
[6]The applicant was subsequently found not to be a member of the post‑determination refugee claimants in Canada (PDRCC) class on March 13, 2002, and then failed to report for a removal interview on April 8, 2002. A warrant was issued for the applicant’s arrest on April 10, 2002.
[7]She was arrested on August 7, 2003, after having come to the attention of immigration officials through a police investigation. She was released on terms and conditions the same day. The terms included reporting address changes, bi‑monthly reporting, reporting as directed for the purposes of making removal arrangements, cooperate with respect to completing travel documents, and not engaging in employment.
[8]She was also notified, in person, of the opportunity to apply for a pre‑removal risk assessment [PRRA] on August 7, 2003, and she applied for a PRRA on August 17, 2003. On January 26, 2004, she was determined not to be subject to risk of persecution, danger of torture, risk to life or risk of cruel and unusual treatment or punishment if returned to her country of nationality.
[9]Late in 2003, she paid a consultant to file an H&C application for her. She found out many months later that nothing had been done in that respect, and then retained a lawyer who submitted the application in November 2004.
[10]In the meantime, she met a man and had two Canadian‑born children, Dennis Russell Balayo, born January 4, 2003, and Hygel Nicholas Felicidario, born August 1, 2000. Unfortunately for the applicant, this man married another woman on February 4, 2002. Even if he declared in an affidavit that he has an active interest in the lives of his children and meets with them once or twice a week, they have never lived with him as his wife seems to object to it. He is unemployed and could not provide for them.
[11]The applicant was contacted by immigration officials and told to report on April 22, 2004. On that occasion, she was instructed to obtain Canadian passports for her children and to apply for a new passport for herself, as hers had expired.
[12]On May 31, 2004, the applicant reported to Immigration but it appeared that she had made no efforts to obtain any passports for the children. The applicant’s removal was scheduled for July 1, 2004. On June 25, 2004, she appeared for a removal interview without passports for the children. Removal arrangements were cancelled as a result.
[13]On September 28, 2004, the applicant again reported for a removal interview. She still did not have passports for the children. She was again told to apply for her children’s passports and report back to Immigration on October 22, 2004. The applicant’s removal was scheduled for November 4, 2004.
[14]The applicant failed to report to immigration officials on October 22, 2004. Removal arrangements for November 4, 2004 had to be cancelled once more after the removal officer called the applicant’s residence and was told that no one by that name lived there.
[15]The applicant failed to appear for a new removal interview on November 9, 2004 and an arrest warrant was issued against her on November 17, 2004. She also stopped reporting, as required, at the Bond Reporting Centre and changed addresses without notifying Citizenship & Immigration Canada (CIC) and CBSA.
[16]After having come to the attention of the immigration authorities through a police investigation, she was arrested on May 6, 2005. She has been detained for removal since that time. It appears that the children are taken care of by the father while the applicant is detained.
[17]Her counsel sent a letter to the enforcement officer, Mrs. Farrauto, on May 31, 2005, asking for a deferral of the applicant’s removal scheduled for June 3, 2005. She argued that the applicant, if she must leave Canada, wanted to take the children with her as they would suffer severe hardship if separated from her. She explained that another lawyer was seeking an order for the applicant to have sole custody of the children, and that the father was cooperating. She also indicated that the father was trying to obtain the children’s birth certificates, so that they could travel with her.
[18]In her response, dated June 1, 2005, Mrs. Farrauto mentioned that she has an obligation under section 48 of IRPA [Immigration and Refugee Protection Act, S.C. 2001, c. 27] to carry out removal orders as soon as reasonably practicable. She added: “Having considered your request, I do not feel that a deferral of the execution of the removal order is appropriate in the circumstances of this case.”
[19]This is obviously a very sad and heartbreaking story, from a human perspective. On the other hand, one can easily understand the exasperation and frustration of immigration officials, in light of the applicant’s obvious attempts to circumvent the law and to use every means at her disposal to prevent her removal from the country. But there is more at stake, as the interests of two innocent bystanders also have to be taken into consideration.
[20]In order for the applicant to succeed, she must satisfy all three branches of the test developed by the Federal Court of Appeal in Toth v. Canada (Minister of Employment and Immigration) (1988), 6 Imm. L.R. (2d) 123. In other words, the Court must be satisfied that the applicant has raised a serious issue, that she will suffer irreparable harm if removed from Canada, and that the balance of convenience favours her.
[21]In the case of an application for a stay of the decision of a removal officer, the Court must not only determine whether a serious issue is raised, but should go further and consider the merits of the application and the likelihood of success. As explained by Justice Pelletier in Wang v. Canada (Minister of Citizenship and Immigration), [2001] 3 F.C. 682 (T.D.), at paragraph 10, this higher threshold is justified where the result of the interlocutory motion will in essence amount to a final determination of the action:
The Supreme Court of Canada has held that the test of “serious issue to be tried” is simply that the issue being raised is one which is not frivolous. RJR — MacDonald Inc. v. Canada (Attorney general), [1994] 1 S.C.R. 311, at paragraph 44. On the other hand, to succeed in the underlying judicial review, the applicant will have to show that the decision not to defer was subject to review for error of law, jurisdictional error , factual error made capriciously, or denial of natural justice: Federal Court Act, R.S.C., 1985, c. F-7, subsection 18.1(4) [as enacted by S.C. 1990, c. 8. s. 5]. The result is that if the stay is granted, the relief sought will have been obtained on a finding that the question raised is not frivolous. If the stay is not granted and the matter proceeds to the application for judicial review, the applicant will have to demonstrate a substantive ground upon which the relief sought should be awarded. The structure of the process allows the applicant to obtain his/her relifef on a lower standard on the interlocutory application, notwithstanding the fact that the relief is the same as that sought in the judicial review application. It is this congruence of the relief sought in the interlocutory and the final application which leads me to conclude that if the same relief is sought, it ought to be obtained on the same basis in both applications. I am therefore of the view that where a motion for a stay is made from a removal officer’s refusal to defer removal, the judge hearing the motion ought not simply apply the “serious issue” test, but should go further and closely examine the merits of the underlying application.
[22]It is with this standard in mind that I will now proceed with an analysis of the first leg of the Toth test. Counsel for the applicant contends that there is a duty on the enforcement officer to consider the best interests of the children when the removal of a parent is being arranged. She argued that Mrs. Farrauto refused to defer the removal, despite awareness that there were no travel documents as yet for the children and that the mother was seeking sole custody so that the children can go with her if she must leave. It was submitted that the officer has not demonstrated that she has been alive, alert and sensitive to the best interests of the children, and has not made any inquiries as to what would happen to the children if they could not leave with their mother.
[23]Much has been made of the decision reached by this Court in Martinez v. Canada (Minister of Citizenship and Immigration), 2003 FC 1341, where my colleague Justice Simpson found that where a parent is being removed and the children are remaining in Canada, the removal officer should defer the removal pending the outcome of the H&C application in order to give effect to Canada’s obligations under Article 1 of the Convention on the Rights of the Child [November 20, 1989, [1992] Can. T.S. No. 3]. Justice Simpson was of the view that paragraph 3(3)(f) of the IRPA has “incorporated” the Convention into our domestic law [at paragraph 13] “to the extent that the IRPA must be construed and applied in a manner that is consistent with the Convention.” This Convention deals with the rights of children and recognizes in its preamble that childhood is entitled to special care and assistance.
[24]Accordingly, she came to the conclusion that it would be contrary to the Convention to use the provisions of the IRPA to separate the applicant and his children before a decision is made on the H&C application, because it is only during the assessment of that application that the best interests of the children can be fully addressed and treated as a primary considera-tion. She therefore found that there was a serious issue in the case as to whether the existence of the undecided H&C application is a bar to the removal of the applicant because the completion of the H&C assessment is required to fulfill Canada’s Convention obligation.
[25]Needless to say, counsel for the respondent vigorously opposed this argument. First, he objects to the notion that paragraph 3(3)(f) has incorporated the Convention into our domestic law, since it is neither precise nor detailed enough to make the international human rights instruments to which Canada is signatory part of Canadian domestic law. This paragraph would be no more than a codification of the canon of statutory interpretation that says that, as far as possible, domestic law should be interpreted in accordance with international obligations. The inclusion of paragraph 3(3)f) cannot be used to ignore or substantially rewrite provisions of the IRPA, it is contended, which is precisely what would happen if an undecided H&C application was to bar removal.
[26]There is no doubt that international treaties and conventions are not part of Canadian law unless they have been implemented by statute (see, inter alia, Francis v. The Queen, [1956] S.C.R. 618; Capital Cities Communications Inc. et al. v. Canadian Radio‑ Television Commn., [1978] 2 S.C.R. 141). Nevertheless, it is now recognized that international human rights law may be used as an aid in interpreting domestic law, even if not formally implemented by statute. This was clearly enunciated by Madam Justice L’Heureux‑Dubé in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
[27]Mr. Justice Kelen has aptly summarized the law in the case of De Guzman v. Canada (Minister of Citizenship and Immigration), [2005] 2 F.C.R. 162 (F.C.), at paragraph 53:
I have concluded that paragraph 3(3)(f) of IRPA codifies the common law canon of statutory construction that domestic law should be interpreted to reflect the values contained in international human rights conventions to which Canada has ascribed. In Baker, the Supreme Court held at paragraph 70 that the human rights values in these international conventions “help inform the contextual approach” which the Court should incorporate when interpreting statutes. However, paragraph 3(3)(f) of IRPA does not incorporate international human rights conventions as part of Canadian law, or state that they override plain words in a statute. Paragraph 3(3)(f) of IRPA means that the conventions be considered by the Court as “context” when interpreting ambiguous provisions of the immigration law.
[28]There is no contradiction between this statement and what Madam Justice Simpson said in Martinez, despite the confusion that may have been created by her use of the word “incorporate”. The real issue is not so much whether the Convention on the Rights of the Child can be used, via paragraph 3(3)(f), as an aid for interpreting ambiguous provisions of IRPA, but whether there is any ambiguity with respect to the proper role of the removal officer.
[29]Subsection 48(2) of IRPA states that “[i]f a removal order is enforceable, the foreign national against whom it was made must leave Canada immediately and it must be enforced as soon as is reasonably practicable.” There is general agreement that this leaves the removal officer with very little discretion. As Justice Nadon said in Simoes v. Canada (Minister of Citizenship and Immigration) (2000), 187 F.T.R. 219 (F.C.T.D.), at paragraph 12:
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&C applications that were brought on a timely basis but have yet to be resolved due to backlogs in the system.
[30]There is also a consensus that the mere existence of an H&C application cannot bar the execution of a removal order. “To hold otherwise,” as Noël J. correctly observed, “would, in effect, allow claimants to automatically and unilaterally stay the execution of validly issued removal orders at their will and leisure by the filing of the appropriate application. This result is obviously not one which Parliament intended.” (Francis v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 31 (T.D.) (QL), at paragraph 2).
[31]The case law of this Court is divided as to whether a removal officer is under an obligation to consider the best interests of a child when assessing if it is reasonably practicable for a removal order to be executed. In some cases, such an obligation has been flatly rejected (see, for example, John v. Canada (Minister of Citizenship and Immigration) (2003), 231 F.T.R. 248 (F.C.T.D.); Mensah v. Canada (Minister of Citizenship and Immigration), 2004 FC 78), while in other cases, the absence of clear evidence as to the impact of the removal on the child was also relied on as a justification not to disturb the decision of the officer to proceed with the removal (see, for example, Buchting v. Canada (Minister of Citizenship and Immigration), [2003] FC 953; Parsons v. Canada (Minister of Citizenship and Immigration), 2003 FC 913).
[32]There is obviously a certain degree of discomfort with an absolute bar on the removal of a parent with Canadian children pending the determination of their H&C application. Had Parliament wanted to provide for an automatic stay where an application for landing on humanitarian or compassionate grounds had been filed and when children were involved, it could have specifically chosen to do so as it did in certain defined circumstances (see sections 49 and 50 of IRPA).
[33]Indeed, the Supreme Court of Canada did not go that far in Baker. In her decision, Madam Justice L’Heureux‑Dubé explicitly recognized that the H&C decision is an important one since it not only affects the future of individuals’ lives in a fundamental manner, but “it may also have an important impact on the lives of any Canadian children of the person whose humanitarian and compassionate application is being considered, since they may be separated from one of their parents and/or uprooted from their country of citizenship, where they have settled and have connections” (paragraph 15). This is a clear recognition that a child can be separated from his parent as a result of a negative H&C decision.
[34]Furthermore, it must be stressed that the Convention on the Rights of the Child does not rule out entirely the possibility of a child being separated from his or her parents. As noted by Justice Nadon in Simoes [at paragraph 15], after referring to the Federal Court of Appeal decision in Langner v. Canada (Minister of Employment and Immigration) (1995), 29 C.R.R. (2d) 184:
. . . this confirms that the best interests of the child are an important consideration, but not one which, in and of itself, can preclude the enforcement of the law—for instance, in the form of a removal order. This is reflected in the Convention on the Rights of the Child, Can. T.S. 1992 No. 3 which not only addresses the best interests of children at article 3(1), but also envisions the possibility of separation of children from their parents in the context of detention, deportation, imprisonment, or death. As Article 9(4) of the Convention stipulates:
. . .
Where such separation [of children from their parents] results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well‑being of the child. State parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned. [Footnote omitted.]
[35]In my view, it is clear that the purpose of this Convention is to protect the child’s well‑being, not to prevent a government from deporting or imprisoning a parent. In short, the existence of a child cannot bar a government from enforcing its laws in the absolute manner suggested by the applicant.
[36]For all these reasons, I am of the view that the filing of an H&C application cannot automatically bar the execution of a removal order, even if it results in the separation of a child from his or her parent(s). Similarly, removal officers cannot be required to undertake a full substantive review of the humanitarian circumstances that are to be considered as part of an H&C assessment. Not only would that result in a “‘pre H&C’ application,” to use the words of Justice Nadon in Simoes, but it would also duplicate to some extent the real H&C assessment. More importantly, removal officers have no jurisdiction or delegated authority to determine applications for permanent residence submitted under section 25 of the IRPA. They are employed by the Canada Border Services Agency, an agency under the auspices of the Minister of Public Safety and Emergency Preparedness, and not by the Department of Citizenship and Immigration. They are not trained to perform an H&C assessment.
[37]Having said all of this, if the best interest of the child is to be taken seriously, some consideration must be given to fate when one or both of their parents are to be removed from this country. As is often the case, I believe that the solution lies somewhere in between the two extreme positions espoused by the parties. While an absolute bar on the removal of the parent would not be warranted, an approach precluding the removal officers to give any consideration to the situation of a child would equally be unacceptable.
[38]I tend to agree with my colleague Justice Snider that the consideration of the best interests of the child is not an all‑or‑nothing exercise, but should be seen as a continuum. While a full‑fledged analysis is required in the context of an H&C application, a less thorough examination may be sufficient when other types of decisions are made. Because of section 48 of the Act and of its overall structure, I would also agree with her that the obligation of a removal officer to consider the interests of Canadian‑born children must rest at the lower end of the spectrum (John v. Canada (Minister of Citizenship and Immigration)).
[39]When assessing an H&C application, the immigration officer must weigh the long term best interests of the child. A useful guide as to the factors that can be taken into consideration is provided in Chapter IP 5 (Immigrant Applications in Canada Made on Humanitarian or Compassionate (H&C) Grounds) of the Immigration Manual: Inland Processing (IP), published by Immigration and Citizenship Canada. Factors related to the emotional, social, cultural and physical well‑being of the child are to be taken into consideration. Examples of factors that can be taken into account include the age of the child, the level of dependency between the child and the H&C applicant, the degree of the child’s establishment in Canada, the child’s links to the country in relation to which the H&C decision is being considered, the medical issues or special needs the child may have, the impact to the child’s education, and matters related to the child’s gender. In a nutshell, to quote from Décary. J.A. in Hawthorne v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 555 (C.A.), at paragraph 6, “the officer’s task is to determine, in the circumstances of each case, the likely degree of hardship to the child caused by the removal of the parent and to weigh this degree of hardship together with other factors, including public policy considerations, that militate in favour of or against the removal of the parent.”
[40]This is obviously not the kind of assessment that the removal officer is expected to undertake when deciding whether the enforcement of the removal order is “reasonably practicable.” What he should be considering, however, are the short‑term best interests of the child. For example, it is certainly within the removal officer’s discretion to defer removal until a child has terminated his or her school year, if he or she is going with his or her parent. Similarly, I cannot bring myself to the conclusion that the removal officer should not satisfy himself that provisions have been made for leaving a child in the care of others in Canada when parents are to be removed. This is clearly within his mandate, if section 48 of the IRPA is to be read consistently with the Convention on the Rights of the Child. To make enquiries as to whether a child will be adequately looked after does not amount to a fulsome H&C assessment and in no way duplicates the role of the immigration officer who will eventually deal with such an application (see Boniowski v. Canada (Minister of Citizenship and Immigration) (2004), 44 Imm. L.R. (3d) 31 (F.C.)).
[41]In the present case, the two kids of the applicant are very young, and nobody seems prepared to care for them besides their mother. Yet, she cannot take them with her since her application for an order seeking sole custody has not yet been dealt with. Therefore, I conclude that the applicant has raised a serious question, even on the more probing standard required in a case like this one, when claiming that the removal officer failed to exercise her discretion appropriately and was not “alert, alive and sensitive” to the childrens’ best interests.
[42]There is no doubt in my mind that the applicant’s two Canadian‑born children will suffer irreparable harm if she is removed from Canada and they are left behind. The evidence clearly shows that the situation of these children would be at best precarious, since neither their father nor the applicant’s current partner seem prepared to nurture them on a long‑term basis, let alone provide them with a loving and stable environment. Such a clear infringement of the best interests of a child and of its most basic human rights must necessarily constitute an irreparable harm.
[43]Finally, I am of the view that the balance of convenience favours the applicant in the very special circumstances of this case.
Conclusion
[44]In the result, the applicant’s removal will be stayed pending the determination, whichever may come first, of
(1) full and fair assessment of the best interests of the applicant’s children as those may be affected by the applicant’s removal from Canada, in the context of the pending H&C application; or
(2) the determination of the underlying application for leave and for judicial review of the decision not to defer the applicant’s removal.