Date: 20030918
Docket: IMM-6986-03
Citation: 2003 FC 1081
Toronto, Ontario, September 18th, 2003
Present: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
BALJINDER SINGH PADDA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant seeks an order staying his removal from Canada to India scheduled for September 17, 2003, but now delayed pending receipt of the necessary travel documents. Although a specific removal date is no longer set, I learned of this only at the conclusion of the hearing. I am satisfied that the applicant's removal is imminent and as I have reviewed the records and heard the oral submissions, I see no useful purpose in requiring the matter to be brought forward anew to a duty or general sittings judge for a determination that will unquestionably have to be made within the week in any event.
[2] Mr. Padda received a negative refugee determination on November 18, 1999 and his application for leave was dismissed on February 22, 2000. He received a negative Pre-Removal Risk Assessment (PRRA) dated July 15, 2003 on August 20, 2003. The underlying application, here, is with respect to the refusal of an enforcement officer to defer the removal that was scheduled following the negative PRRA assessment.
[3] Mr. Padda was married on October 5, 2002. His wife is a permanent resident and he submitted a sponsored humanitarian and compassionate (H & C) application on February 13, 2003. The application has not yet been determined. This is his wife's third marriage. Her first two marriages were abusive. His wife has a child from her second marriage to whom Mr. Padda stands in loco parentis. He is the only father the child has known. His wife is presently about 7 weeks into a pregnancy. The family is totally dependent on Mr. Padda's earnings for support.
[4] Mr. Padda attended an interview with the enforcement officer on August 20th. At that time, a removal date had not been set. He was accompanied by his wife, step-daughter and counsel at the interview. The enforcement officer advised them that when she obtained a removal date, an itinerary would be faxed to counsel. Mr. Padda's counsel informed the officer that when the date was established, a deferral would be requested and that a psychological report would be forthcoming. Mr. Padda's wife had seen a psychologist for the purpose of obtaining a psychological assessment the previous day.
[5] On September 5th, the enforcement officer faxed to counsel a direction to report. As anticipated, the request for deferral was made and the enforcement officer was provided with a copy of the psychologist's report dated August 21, 2003, medical confirmation of the pregnancy, a copy of the H & C application, and submissions as well as further submissions from counsel. By facsimile correspondence dated September 11, 2003, forwarded to counsel and copied to Mr. Padda, the enforcement officer advised that the request for deferral would not be granted. It is evident that some prior oral communication occurred because the application for leave to apply for judicial review was filed on September 10th and references a negative deferral decision communicated to the applicant on September 9th. The motion for a stay was filed on September 10th. Nothing turns on the date of the notification of refusal.
[6] It is common ground that the applicant must satisfy the tri-partite test set out in Toth v. Canada (Minister of Employment and Immigration) (1988) 86 N.R. 302 (F.C.A.) that there exists a serious issue, that irreparable harm will result if the stay is not granted and that the balance of convenience favours the applicant. It is also common ground that the test is conjunctive so that failure on any one of the requirements will be fatal. I agree with the respondent that where a stay would effectively grant the relief sought on the underlying application, the "serious issue" threshold is not merely that the question raised is not frivolous or vexatious. Where a motion for a stay is made with respect to a 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: Wang v. Canada (Minister of Citizenship and Immigration), [2001] 3 F.C. 682 (F.C.T.D.).
[7] Mr. Padda submits that the scope of the authority of a removal officer to defer removal is, without more, a serious issue. It is alleged that the authority in this court is not consistent and is more appropriately described as being divided on this issue.
[8] I am not convinced of the accuracy of that submission. Mister Justice Russell recently reviewed the authorities regarding this issue in Prasad v. Canada (Minister of Citizenship and Immigration) 2003 FCT 614, F.C.J. No. 805. At paragraph 32 of his reasons, Mister Justice Russell consolidates the principles and concludes that "the discretion under section 48 [of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA)] allows the officer to consider the circumstances directly affecting travel arrangements, but [the] inquiry is not restricted to that". He goes on to state that the officer also has to consider other special circumstances of the case. The mere existence of a pending H & C application does not warrant a deferral of removal nor is it the enforcement officer's job to evaluate the merits of an H & C application. A failure, however, to consider compelling individual circumstances, such as personal safety or health, may constitute an unlawful fettering of the officer's discretion.
[9] It is evident from Mr. Justice Russell's reasons that the law is clear: removal is the rule while deferral is the exception and the discretion that a removal officer may exercise is very limited. It appears to me that beyond the noted principles, each case will turn on its own specific facts. Thus, I do not accept the applicant's submission that there exists a serious issue in this regard.
[10] Mr. Padda does not suggest that there was, here, a fettering of discretion. The circumstances of the applicant's case were reviewed and considered and, in the end, the removal was not deferred. Rather, he alleges that the enforcement officer erred in three material respects in the consideration.
[11] The first alleged error is that the enforcement officer was wrong in law in stating that the applicant would have no status to work in Canada, to support his family, even if removal was deferred. The enforcement officer was not aware, nor did Mr. Padda disclose, that he possessed a work permit valid until February , 2004. More importantly, argues the applicant, the statement constitutes an error in law because subsection 206(b) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations) provides that a work permit may be issued to a foreign national who cannot otherwise support himself if the foreign national is subject to an unenforceable removal order. I am prepared to assume, without determining, that the officer was wrong in stating, in essence, that Mr. Padda would not be able to work even if removal was deferred. However, nothing turns on the error. The enforcement officer was considering the financial impact on Mr. Padda's wife and step-daughter in the event of removal. That was a relevant consideration. The ability to support them if he was not removed was irrelevant to the determination that the officer had to make. Moreover, I regard the comment of the enforcement officer as gratuitous. This does not raise a serious issue.
[12] The second alleged error is that the enforcement officer completely ignored the contents of the psychological assessment with respect to Mr. Padda's wife. That is not so. The enforcement officer did consider the psychological report and while she did not quote the specific terminology used by the psychologist, her observations regarding treatment were accurate. It is not open to the applicant to argue that the weight assigned to the report was not sufficient. Weighing the factors is the task of the enforcement officer. There is no serious issue here.
[13] The third alleged error is that the enforcement officer did not consider the best interests of the child. There is authority holding that the limited discretion of the enforcement officer does not extend to considering the best interests of the child, since that is the purpose of the H & C application: John v. Canada (Minister of Citizenship and Immigration) 2003 FCT 420, F.C.J. No. 583; Banik v. Canada (Minister of Citizenship and Immigration) IMM-4861-03; Robin v. Canada (Minister of Citizenship and Immigration) IMM-5796-03. That question does not arise on these facts. The enforcement order did have regard to the emotional and financial impact on Mr. Padda's step-daughter. The child's interests were weighed together with the other factors and the officer concluded that when viewed in totality, the circumstances did not militate in favour of deferral. Again, what the applicant seeks is for the court to re-weigh the factors. That cannot be done and there is no serious issue here.
[14] The applicant has failed to establish a serious issue and therefore the request for a stay must be denied. I am not satisfied, in any event, that there exists irreparable harm. On the facts, I agree that the separation of Mr. Padda from his family will result in financial, psychological and emotional hardship and heartache. The inevitable consequences of removal lead to such results. Mr. Padda is neither a Convention refugee nor a permanent resident in Canada. He does not have any legal status here. His H & C application will continue in his absence and if he is successful in this regard, he may return to Canada and be reunited with his family.
ORDER
THIS COURT ORDERS that the motion is dismissed.
"Carolyn Layden-Stevenson"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-6986-03
STYLE OF CAUSE: BALJINDER SINGH PADDA
For the Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
For the Respondent
DATE OF HEARING: SEPTEMBER 15, 2003
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: LAYDEN-STEVENSON J.
DATED: SEPTEMBER 18, 2003
APPEARANCES BY Ms. Krassina Kostadinov
For the Applicant
Ms. Mandeep Atwal
For the Respondent
SOLICITORS OF RECORD: Ms. Krassina Kostadinov
Barrister & Solicitor
Toronto, Ontario
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT
Date: 20030918
Docket: IMM-6986-03
BETWEEN:
BALJINDER SINGH PADDA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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