Judgments

IMM‑3836‑05

2006 FC 311

Maria Bonnie Arias Garcia and Robert Salgado‑ Arias and Rodolfo Valdes‑Arias (alias Rodolfo Arias‑ Garcia) (Applicants)

v.

The Minister of Citizenship and Immigration and The Minister of Public Safety and Emergency Preparedness (Respondents)

Indexed as: Garcia v. Canada (Minister of Citizenship and Immigration) (F.C.)

Federal Court, Tremblay‑Lamer J.—Montréal, February 1; Ottawa, March 9, 2006.

Citizenship and Immigration — Exclusion and Removal — Removal of Visitors — Judicial review of removal officer’s decision not to grant statutory stay under Immigration and Refugee Protection Act (IRPA), s. 50(a) after applicants ordered deported — Applicants, Mexican mother, two children arriving in Quebec with visitors’ visas — Custody battle for son in Mexican, Canadian courts — Quebec Court of Appeal reversing Quebec Superior Court judgment ordering return of son to Mexico — Judgment directly affecting removal order — Removal officer’s discretion limited to when removal order carried out — Removal officer bound to abide by statutory stay under IRPA, s. 50(a) when finding applicant subject of court order — However, court decisions triggering stay of removal order not allowing applicants to avoid other obligations imposed by same legislation — Therefore, stay can only be temporary, cannot indefinitely bar enforcement of removal order — Also, child’s best interests cannot bar removal of parent staying illegally in Canada — Application allowed — Question certified as to effect of provincial court judgment on enforcement of removal order under IRPA.

Construction of Statutes — Immigration and Refugee Protection Act (IRPA), s. 50(a) — Judicial review of removal officer’s decision not to grant statutory stay under IRPA, s. 50(a) after applicants ordered deported — S. 50(a) providing removal order stayed where enforcement would directly contravene judicial decision — Criteria to guide court’s analysis in applying IRPA, s. 50(a) discussed — Words “directly contravened” narrowly interpreted in assessing implementation of judicial decision — S. 50(a) narrowly construed, interpreted as temporary measure suspending removal proceeding pending final decision in matter — Interpretation in harmony with scheme of IRPA, allowing co‑existence of federal, provincial legislation — Quebec Court of Appeal judgment not inconsistent with narrow reading of IRPA, s. 50(a).

Conflict of Laws — Principle that federal legislation prevailing over inconsistent provincial rule of law applied — Provincial legislation would therefore be of no force or effect — Permanent stay in case at bar would create conflict between federal, provincial legislation but interpretation of Immigration and Refugee Protection Act, s. 50(a) as temporary measure would avoid such conflict — Would allow both levels of legislation to co‑exist.

This was an application for judicial review of a removal officer’s decision not to grant the applicants a statutory stay provided for by paragraph 50(a) of the Immigration and Refugee Protection Act (IRPA). Paragraph 50(a) provides that a removal order is stayed if a decision that was made in a judicial proceeding would be directly contravened by the enforcement of the removal order. The applicants, a mother and two children, arrived in Quebec when there was an outstanding Mexican court order awarding custody of the child Rodolfo to the father. They were subsequently stopped at a border crossing on the ground of abduction contrary to a custody order and pursuant to two arrest warrants issued in Mexico. The applicants became the subject of an immigration report and their case was referred to the Canadian immigration authorities. The female applicant then made a refugee claim for herself and her children. The Quebec Superior Court ordered Rodolfo immediately returned to Mexico under provincial child‑protection legislation, but the Quebec Court of Appeal set aside that judgment. A deportation order later issued against the applicants and an immigration officer refused to grant a stay under paragraph 50(a). The issue was whether the Quebec Court of Appeal’s judgment had the effect of imposing a statutory stay pursuant to paragraph 50(a) of the IRPA.

Held, the application should be allowed.

The issue turned exclusively on the interpretation of paragraph 50(a) of the IRPA. Case law has set out the criteria that should guide the Court’s analysis when applying paragraph 50(a) of the IRPA. The first criterion requires that any analysis under that paragraph should be narrow in scope. The words “directly contravened” must be narrowly interpreted in assessing the implementation of the judicial decision. Thus, since the Quebec Court of Appeal judgment was concerned only with the child Rodolfo, it could have no direct effect on the removal order against the other applicants. The second criterion emphasizes the importance to be given to decisions made under paragraph 50(1)(a) of the former Immigration Act, which is similar to paragraph 50(a) of the IRPA. Such case law supports a narrow interpretation of paragraph 50(a): there must be a specific provision inconsistent with the removal of the individual in question for there to be a direct contravention of a judicial order. The third criterion is that the statutory provisions are to be construed harmoniously with the scheme and object of the IRPA and the intention of Parliament.

The Quebec Court of Appeal unequivocally held that the return of Rodolfo to Mexico should not take place since he had settled into his new environment. Paragraph 50(a) of the IRPA recognizes that situations may exist that trigger a statutory stay solely destined to ensure compliance with the spirit of a judicial decision. Such circumstances are exceptional and cannot have the effect of encroaching on Parliament’s jurisdiction over immigration. It is for the removal officer to decide whether a statutory stay applies. In accordance with the purpose of the IRPA, and section 49 in particular, the discretion of the removal officer is clearly limited to when a removal order will be carried out. The officer is not required to consider humanitarian grounds before removal but may properly take into account a range of factors, including whether the applicant is the subject of a court order requiring his presence in Canada. Because of the officer’s limited discretion, the latter has no choice but to follow the statutory stay provided by paragraph 50(a) when the officer finds that an applicant is the subject of a court order. The stay will allow the proper authority to consider the case and determine whether the best interests of the child or other factors are a bar to final removal. However, the stay can only be temporary and cannot have the effect of indefinitely barring enforcement of the removal order. Therefore, the Quebec Court of Appeal judgment was not inconsistent with a narrow reading of paragraph 50(a) of the IRPA.

Further, it is well settled that in a conflict of laws situation, federal legislation prevails over any inconsistent provincial rule of law and the latter is of no force or effect. A permanent stay in the case at bar would create a conflict between the provincial legislation entitled An Act respecting the civil aspects of international and interprovincial child abduction (ACAIICA) and the federal IRPA because complying with one is defying the other. However, interpreting the paragraph 50(a) stay as temporary avoids such a conflict. In these circumstances, such an interpretation is the most harmonious since it allows the ACAIICA and IRPA to co‑exist.

The intent of Parliament was clear. Court decisions triggering a stay of a removal order do not allow the applicants to avoid the other obligations imposed by the same legislation. The statutory stay under paragraph 50(a) is thus a temporary measure suspending the removal proceeding pending a final decision in the matter.

The decision maker is required to be alert, alive and sensitive to a child’s best interests and give them the weight they deserve in the circumstances of the case. In cases where the court must consider the impact of a court decision interpreting section 20 of the ACAIICA and concluding that the child has settled into his environment, the child’s interests will be a factor to which significant weight must be attached.

The fact that Rodolfo may be the subject of a statutory stay was not a bar to removal of the mother since the child’s best interests cannot in any way be a bar to the removal of a parent who is illegally in Canada. A question was certified as to whether a provincial court judgment refusing to order the return of a child under provincial legislation and international convention can directly and indefinitely prevent the enforcement of a removal order taken under the IRPA.

statutes and regulations judicially

considered

An Act respecting the civil aspects of international and interprovincial child abduction, R.S.Q., c. A‑23.01, s. 20.

Immigration Act, R.S.C., 1985, c. I‑2, s. 50(1)(a).

Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 44(1), 49, 50.

cases judicially considered

applied:

Alexander v. Canada (Solicitor General), [2006] 2 F.C.R. 681; (2005), 49 Imm. L.R. (3d) 5; 2005 FC 1147; Perez v. Canada (Minister of Citizenship and Immigration), 2005 FC 1317.

considered:

R.V.M. c. M.B.G.A., [2004] R.D.F. 154 (Que. Sup. Ct.); revd sub nom. M.B.G.A. c. R.V.M., [2004] R.D.F. 500 (Que. C.A.); Cuskic v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 3; (2000), 148 C.C.C. (3d) 541; 9 Imm. L.R. (3d) 5; 261 N.R. 73 (C.A.); Mobtagha v. Canada (Minister of Employment and Immigration) (1992), 53 F.T.R. 249 (F.C.T.D.); Multiple Access Ltd. v. McCutcheon et al., [1982] 2 S.C.R. 161; (1982), 138 D.L.R. (3d) 1; 18 B.L.R. 138; 44 N.R. 181; 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.

referred to:

Simoes v. Canada (Minister of Citizenship and Immigration) (2000), 187 F.T.R. 219; 7 Imm. L.R. (3d) 141 (F.C.T.D.); Adviento v. Canada (Minister of Citizenship and Immigration) (2003), 242 F.T.R. 295; 33 Imm. L.R. (3d) 13; 2003 FC 1430; Smith v. The Queen, [1960] S.C.R. 776; (1960), 25 D.L.R. (2d) 225; 128 C.C.C. 145; 33 C.R. 318; Louis v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1344; Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358; (2002), 212 D.L.R. (4th) 139; 20 Imm. L.R. (3d) 119; 288 N.R. 174; 2002 FCA 125; Canada (Minister of Citizenship and Immigration) v. Liyanagamage (1994), 176 N.R. 4 (F.C.A.).

authors cited

Citizenship and Immigration Canada. Immigration Manual: Enforcement (ENF). Chapter ENF 10: Removals, online:<http://www.cic.gc.ca/manuals‑ guides/english/enf/enf10e.pdf>

Sullivan, Ruth. Sullivan and Driedger on the Construction of Statutes, 4th ed. Toronto: Butterworths, 2002.

APPLICATION for judicial review of a removal officer’s decision not to grant the applicants a statutory stay pursuant to paragraph 50(a) of the Immigration and Refugee Protection Act (IRPA) after a Quebec Court of Appeal judgment refused to order the return of the applicant’s child to her ex‑husband in Mexico. Application allowed.

appearances:

Jean El Masri for applicants.

Ian Demers for respondents.

solicitors of record:

El Masri, Dugal, Montréal, for applicants.

Deputy Attorney General of Canada for respondents.

The following is the English version of the reasons for judgment and judgment rendered by

[1]Tremblay-Lamer J.: The applicants challenged the decision of the removal officer of June 17, 2005 not to grant them the statutory stay provided for by paragraph 50(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA).

[2]In July 1999, in Mexico, the applicant and her husband Mr. Valdes separated and initiated legal proceedings for the custody of their child Rodolfo.

[3]On December 6, 2001, a Mexican court awarded provisional custody of Rodolfo to the applicant and access rights to Mr. Valdes.

[4]The applicant had a birth certificate issued for Rodolfo in a name that was not his. A Mexican passport was issued for Rodolfo in that false name.

[5]On June 24, 2002, the applicants arrived in Quebec on a visitor’s visa.

[6]In February 2003, they returned to Mexico for interviews with the Quebec authorities about Quebec selection certificates.

[7]On April 28, 2003, Quebec selection certificates were issued in the names of the applicants, including the selection certificate for Rodolfo issued in his false name.

[8]On the same day, a Mexican court reversed the judgment of December 6, 2001 and awarded custody of Rodolfo to Mr. Valdes.

[9]On May 28, 2003, following a stay of over two months in Mexico, the applicants returned to Quebec.

[10]On October 22, 2003, custody of Rodolfo was again awarded to the applicant pursuant to another Mexican judgment.

[11]As their visitor’s visa was about to expire, the applicant and her two children went to the U.S. on November 9, 2003. They were stopped at the Lacolle border crossing on the ground of abduction contrary to a custody order and pursuant to two arrest warrants issued by Mexico on June 25 and September 25, 2002.

[12]A subsection 44(1) report was issued against the applicants and their case referred to the Immigration Division (ID) of the Immigration and Refugee Board.

[13]The female applicant then applied for refugee status for herself and her children.

[14]On November 17, 2003, the female applicant filed a motion to obtain custody of Rodolfo in the Quebec Superior Court. On the same day, Mr. Valdes filed a motion in the same court requiring that Rodolfo be immediately returned to Mexico pursuant to An Act respecting the civil aspects of international and interprovincial child abduction, R.S.Q., c. A‑23.01 (the ACAIICA).

[15]On January 7, 2004, the Quebec Superior Court granted Mr. Valdes’ motion and ordered that Rodolfo be returned to Mexico immediately [R.V.M. c. M.B.G.A., [2004] R.D.F. 154].

[16]On June 8, 2004, the Quebec Court of Appeal allowed the appeal by the female applicant from the Superior Court judgment, quashed that judgment and dismissed Mr. Valdes’ motion [M.B.G.A. c. R.V.M., [2004] R.D.F. 500].

[17]On October 6, 2004, a Mexican divorce decree relating to the parties awarded custody of Rodolfo to the female applicant and gave both parents parental authority.

[18]On January 19, 2005, the ID issued a deportation order against the applicants.

[19]On May 26, 2005, the PRRA [pre-removal risk assessment] officer rendered a negative decision on the PRRA application made by the female applicant on the ground that there was no personal risk for herself and her children in Mexico and that government protection was available to them.

[20]On June 17, 2005, the removal officer refused to approve the applicants’ application that they be granted a stay under paragraph 50(a) of the IRPA.

ANALYSIS

[21]I consider that the standard of review regarding the statutory stay is correctness decision, since the issue turns exclusively on a question of interpretation of paragraph 50(a) of the IRPA: Alexander v. Canada (Solicitor General), [2006] 2 F.C.R. 681 (F.C.).

[22]Paragraph 50(a) of the IRPA reads as follows:

50. A removal order is stayed

(a) if a decision that was made in a judicial proceeding—at which the Minister shall be given the opportunity to make submissions—would be directly contravened by the enforcement of the removal order

[23]Did the Quebec Court of Appeal’s judgment have the effect of imposing a statutory stay pursuant to paragraph 50(a) of the IRPA?

[24]That legislation has been interpreted in two recent decisions, which set out the criteria that should guide the Court’s analysis when applying paragraph 50(a) of the IRPA.

[25]In Alexander, the issue was whether an order of the Ontario Court of Justice giving the female applicant custody of her two children (Canadian citizens) and providing that they could not be removed from Ontario triggered a statutory stay pursuant to paragraph 50(a) of the IRPA so as to bar a removal order against the applicant. Justice Eleanor Dawson held that the implementation of the removal order against the applicant would not have the effect of directly contravening the order by the Ontario Court of Justice, since the removal order had no effect on the physical location of the children. She suggested the following criteria, which were summarized by Justice Paul Rouleau in Perez v. Canada (Minister of Citizenship and Immigration), 2005 FC 1317 as follows, at paragraph 16:

(i)     An analysis under s. 50(a) must be given a narrow scope, and therefore the words “directly contravened” must be narrowly interpreted in assessing the decision made in a judicial proceeding;

(ii)   The case law surrounding s. 50(1)(a) of the former Immigration Act must be given due regard, as the current legislation is similar to the former legislation; and

(iii) Statutory provisions are to be construed harmoniously with the scheme and object of the Act and the intention of Parliament, including the consideration that non‑citizens do not have an unqualified right to enter or remain in Canada, and that a valid deportation order must be enforced as soon as is reasonably practicable.

[26]As to the application of those three criteria, Rouleau J. added that the list was not exhaustive, merely illustrative. Each case must be examined on its merits, the decision maker determining the weight that should be given to each of the established criteria. At paragraph 17, Rouleau J. wrote the following:

These three factors, as set out by Dawson J., and summarized above, do not comprise an exhaustive list of factors to be considered in a s. 50(a) assessment, but rather serve as an illustrative list. Each case must be examined on the merits and facts of [sic], and the factors are an illustrative set of guidelines for such an analysis. In addition the factors are not necessarily cumulative. Each case should be examined on the merits, and the decision maker should determine the weight to be given to each factor in a particular set of circumstances. Given the three factors presented by Dawson J., the present matter can be examined.

[27]The first criterion requires that any analysis under paragraph 50(a) should be narrow in scope. The words “directly contravened” must be narrowly interpreted in assessing the implementation of the judicial decision.

[28]Thus, in the case at bar, since the judgment of the Quebec Court of Appeal is concerned only with the child Rodolfo, it can have no direct effect on the removal order against the other applicants.

[29]The second criterion re‑emphasizes the importance to be given to decisions made pursuant to paragraph 50(1)(a) of the former Immigration Act, R.S.C., 1985, c. I‑2 (the former Act), which is essentially similar to paragraph 50(a) of the IRPA. In Cuskic v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 3 (C.A.), the Federal Court of Appeal held that a probation order requiring the offender to report to a probation officer regularly was not a bar to a deportation order. In Mobtagha v. Canada (Minister of Employment and Immigration) (1992), 53 F.T.R. 249 (F.C.T.D.) Rouleau J. held that an order made by the Quebec Lieutenant‑Governor was not a “judicial order”. Rouleau J. made an exhaustive review of the earlier case law and concluded that the IRPA stay was triggered only in cases where the judicial order contained specific provisions that would be infringed by the enforcement of the deportation order.

[30]Accordingly, this case law supports a narrow interpretation of paragraph 50(a): there must be a specific provision inconsistent with the removal of the individual in question for there to be a direct contravention of a judicial order.

[31]As to the third criterion, that the statutory provisions are to be construed harmoniously with the scheme and object of the IRPA and the intention of Parliament, Dawson J. [in Alexander], followed the remarks of the Court of Appeal in Cuskic, in which Justice Gilles Létourneau held that paragraph 50(1)(a) of the former Act could not be given an interpretation conflicting with the purpose of the IRPA, which was to quickly remove inadmissible individuals from Canada. She made the following remarks, at paragraph 35:

Third, statutory provisions are to be construed harmoniously with the scheme and object of the Act and the intention of Parliament. In Cuskic v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 3, the Federal Court of Appeal considered whether the execution of a removal order against a person subject to a probation order that contained a direction to report to a probation officer on a specific, periodic basis, would directly contravene the probation order so as to invoke the statutory stay available under paragraph 50(1)(a) of the former Act. The Court of Appeal acknowledged that the obligation of the person concerned to report regularly to his probation officer required that he be in Canada. Notwithstanding that, the Federal Court of Appeal found that paragraph 50(1)(a) could not be literally interpreted without giving appropriate consideration to the overall scheme of the former Act. At paragraphs 25-26, Mr. Justice Létourneau wrote for the Court:

In my view, the broad interpretation given to the specific exceptions found in section 50, particularly paragraph 50(1)(a), leads to unjust and unreasonable consequences that cannot have been intended by Parliament. I believe it is appropriate, in the circumstances of this case, “[w]here it appears that the consequences of adopting an interpretation would be absurd . . . to reject it in favour of a plausible alternative that avoids the absurdity”: see R. Sullivan, Driedger on the Construction of Statutes, 3rd ed., Toronto: Butterworths, 1994, at page 79. the plausible alternative is, in my view, that probation orders were not meant to defer the execution of a valid removal order and interfere with the Minister’s duty, pursuant to section 48 of the Act, to act diligently and expeditiously.

To accept the interpretation given to paragraph 50(1)(a) by the Reviewing Judge defeats the purpose of Part III of the Act, which, it bears repeating, is to remove quickly from Canada persons who are inadmissible, and compromise the efficacy of the Act as a whole.

[32]In the case at bar, therefore, the Court must choose an interpretation which is in harmony with the scheme of the IRPA.

[33]In my analysis, I have been guided by those factors. In the case at bar, the Quebec Court of Appeal held, I think quite unequivocally, that the return of the child Rodolfo to Mexico should not take place since he had settled into his new environment. I quote the finding of Justice Louise Mailhot in full, at paragraph 41:

[translation] I find that the evidence shows that the child has settled into his new environment and, for these reasons, I would allow the appeal, quash the trial judgment and dismiss the motion for the immediate return of the child Rodolfo to Mexico, each party to pay its own costs.

[34]It is hard to imagine that, as the respondents have suggested, this judgment would not have a direct effect on the decision by the removal officer ordering the return of the child Rodolfo.

[35]On the one hand, the applicants argued that in such circumstances the removal officer had no choice but to observe the statutory stay mentioned in paragraph 50(a) of the IRPA.

[36]On the other hand, the respondents argued that such an interpretation was absurd since it made possible an evasion of the peremptory provisions of the IRPA regarding the obtaining of permanent residence and the right to remain in Canada.

[37]What then is the import of paragraph 50(a) of the IRPA in those circumstances?

[38]In my opinion, paragraph 50(a) recognizes that situations may exist that trigger a statutory stay solely destined to ensure compliance with the spirit of a judicial decision. Such circumstances are exceptional and cannot have the effect of encroaching on Parliament’s jurisdiction over immigration.

[39]First, I would note that it is for the removal officer to decide whether a statutory stay applies (Immigration Manual: Enforcement (ENF), Chapter ENF 10, Removals). It is worth noting that, in accordance with the purpose of the IRPA, and section 49 in particular, the discretion of the officer responsible for removal is clearly limited to when a removal order will be carried out (Simoes v. Canada (Minister of Citizenship and Immigration) (2000), 187 F.T.R. 219 (F.C.T.D.), at paragraph 12).

[40]As my colleague Justice Luc Martineau indicated in Adviento v. Canada (Minister of Citizenship and Immigration) (2003), 242 F.T.R. 295 (F.C.), it is not required to conduct a “mini” review of humanitarian grounds before removal. The officer may properly take into account a range of factors, including, as in the case at bar, whether the applicant is the subject of a court order requiring his presence in Canada.

[41]In my opinion, in view of the limited discretion of the removal officer, which does not allow a review of humanitarian considerations to be made, the latter has no choice but to follow the statutory stay provided by paragraph 50(a) when he finds that an applicant is the subject of a court order. The stay will allow the proper authority to consider the case and determine whether the best interests of the child or other factors are a bar to final removal.

[42]However, that stay can only be temporary and cannot have the effect of indefinitely barring enforcement of the removal order. Paragraph 50(a) cannot be divorced from its context, paragraphs 50(b) to (e) of the IRPA, which grant the party concerned a temporary stay in certain circumstances, not a permanent stay.

[43]Accordingly, the Quebec Court of Appeal judgment is not inconsistent with a narrow reading of paragraph 50(a).

[44]A court judgment could not have the effect of triggering a permanent stay to the benefit of the applicant since, if the proper authority will not grant him permanent residence, he would be remaining in Canada without status for an indefinite period. Such a result would be absurd. Parliament could not have intended to apply such logic. Accordingly, that interpretation must be rejected in favour of a plausible alternative which avoids absurdity (Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed. (Toronto : Butterworths, 2002)).

[45]Further, it is well settled that in a conflict of laws situation, federal legislation prevails over any inconsistent provincial rule of law and the latter is of no force or effect. A permanent stay in the case at bar would create a conflict between the provincial ACAIICA and the federal IRPA in that “compliance with one is defiance of the other”: Dickson J. [as he then was] in Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161, at page 191, relying on the conclusion of Martland J. in Smith v. The Queen, [1960] S.C.R. 776. On the other hand, interpreting the paragraph 50(a) stay as temporary avoids such a conflict. In these circumstances, such an interpretation is the most harmonious since it allows the ACAIICA and IRPA to co‑exist.

[46]In my view, the intent of Parliament is clear. Court decisions triggering a stay of a removal order do not allow the applicants to avoid the other obligations imposed by the same legislation: Louis v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1344, at paragraph 14. The statutory stay provided for by paragraph 50(a) is thus a temporary measure suspending the removal proceeding pending a final decision in the matter.¹

[47]As to the question of the child’s best interests, the decision maker must be “alert, alive and sensitive to them” (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paragraph 75) and give them the weight they deserve in the circumstances of the case (Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358 (C.A.)). I consider that in cases where the court must consider the impact of a court decision interpreting section 20 of the ACAIICA and concluding that the child has settled into his or her environment, it is apparent that the child’s interests will be a factor to which significant weight must be attached.

[48]In short, the removal officer was bound to abide by the temporary stay provided for by paragraph 50(a), since the court judgment had a direct effect on the removal order. However, the Court of Appeal’s judgment has to be narrowly read. It cannot be interpreted as having the effect of giving Rodolfo permanent resident status, status which would have to be given or withheld by the proper authority.

[49]The fact that the child Rodolfo may be the subject of a statutory stay is not a bar to removal of the mother, since the child’s best interests cannot in any way be a bar to the removal of a parent who is illegally in Canada (Legault). As Dawson J. suggested in Alexander, parental custody does not imply physical custody of the child at all times, but the right to control its place of residence. When faced with removal, the mother may apply to the Court of Appeal for a variance of its order to allow the return of Rodolfo to Mexico or make provision for leaving him in Canada.

[50]Accordingly, the application for judicial review at bar will be allowed. The decision by the removal officer denying the application for a statutory stay for the child Rodolfo pursuant to paragraph 50(a) of the IRPA is set aside. The matter is referred back for reconsideration by another removal officer in accordance with these reasons.

[51]Counsel for the applicant asked that the following questions be certified:

[translation]

1.     Should a pre‑removal risk assessment (PRRA) officer give reasons for his decision not to follow a decision contrary to his own—also in a PRRA matter—the facts of which are similar in all relevant respects?

2.     Does the dismissal by a court of a motion for the immediate return of a child pursuant to the Act respecting the Civil Aspects of International and Interprovincial Child Abduction (or any other similar provincial legislation), on the ground that the child has settled in, trigger the statutory stay provided for by paragraph 50(a) of the Immigration and Refugee Protection Act?

[52]In my view, only the second question meets the requirements for certification of a question (Canada (Minister of Citizenship and Immigration) v. Liyanagamage (1994), 176 N.R. 4 (F.C.A.)). Although the circumstances of the case at bar are exceptional, the scope of section 50(a) of the Act is a question of general importance. However, the question as worded by the respondents better expresses the issue. I accordingly certify the following question:

[translation]

Can the judgment of a provincial court refusing to order the return of a child pursuant to the Convention on the Civil Aspects of International Child Abduction, [1989] Can. T.S. No. 35, and s. 20 of the Act respecting the Civil Aspects of International and Interprovincial Child Abduction, R.S.Q., c. A‑23.01, “the ACAIICA”, have the effect of directly and indefinitely preventing the enforcement of a removal order which has taken effect pursuant to the Immigration and Refugee Protection Act, S.C. 2001, c. 27, (“the IRPA”)?

JUDGMENT

THE COURT ORDERS THAT:

1. This application for judicial review is allowed;

2. The decision of the removal officer denying the application for a statutory stay for the child Rodolfo pursuant to paragraph 50)(a) of the IRPA is set aside;

3. The matter is referred back for reconsideration by another removal officer in accordance with these reasons.

¹ There is currently no directive expressly indicating which immigration officer would be responsible for such a review.