CITIZENSHIP AND IMMIGRATION |
Exclusion and Removal |
Immigration Inquiry Process |
Wu v. Canada (Minister of Citizenship and Immigration)
IMM-1995-02
2002 FCT 546, MacKay J.
14/5/02
5 pp.
Applicant, wife, child arrived in Canada from People's Republic of China in 1990--CRDD found applicant not Convention refugee, but subsequently found wife, daughter Convention refugees--Wife applied for permanent residence, including husband as dependant--Couple separated in 1996--Wife advised authorities to process application for landing excluding husband--Couple divorced in 1997 but applicant continued as primary caregiver for their three children (two of whom Canadian-born) while wife worked-- Couple reconciled in 2000, resumed cohabitation--In May 2001 applicant received letter directing him to attend pre-removal interview on June 12--Couple remarried on June 13 --Wife initiated new application to sponsor husband's landing from within Canada--Applicant also filed in-Canada humanitarian and compassionate (H&C) application-- Requested deferral of removal pending determination of in-Canada H&C application--H&C application outstanding when stay application heard--In April 2002 applicant obtained full-time employment with flexible hours permitting him to take children to school, pick them up at end of day-- On April 29, 2002 removal officer considered circumstances, scheduled removal for May 6--Applicant neither mentioned June 2001 request to defer removal pending outcome of H&C application nor made new request--On May 1 filed application for leave, judicial review seeking order to compel Minister to decide H&C application, as well as application for stay of removal--Stay granted because best interests of applicant's children not considered--Application raising serious issue--Irreparable harm to applicant, spouse, children if applicant removed without those interests being considered--Neither outstanding H&C application nor fact that there are children basis alone for finding irreparable harm, but Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358 (C.A.) indicating best interests of any children who may be affected important factor in decisions affecting status of non-Canadians under Immigration Act--Principle extending to requiring removal officers to give full, fair consideration to those interests where not previously done--Immigration Act, R.S.C., 1985, c. I-2.