Date: 20050405
Docket: IMM-2008-05
Citation: 2005 FC 454
Vancouver, British Columbia, Tuesday, the 5th day of April, 2005
Present: THE HONOURABLE MADAM JUSTICE DAWSON
BETWEEN:
HUNG PONG MAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION and
THE SOLICITOR GENERAL OF CANADA
Respondents
REASONS FOR ORDER AND ORDER
[1] UPON motion dated 31 March 2005, on behalf of the Applicant, for an interim order pursuant to s. 18.2 of the Federal Court Act or, alternatively, the Court's inherent jurisdiction, staying the operation of the execution of the removal order made against the Applicant until such time as the within Application for Leave and Judicial Review has been dealt with; and allowing the motion to be heard on less than two days' notice pursuant to Rule 362(2)(a) or, alternatively, Rule 362(2)(b) of the Federal Court Rules.
[2] AND UPON noting that removal is scheduled for noon on April 5, 2005;
[3] AND UPON considering the evidence and the submissions contained in the motion records;
[4] AND UPON counsel consenting to the making of an order removing the Minister of Citizenship and Immigration as a respondent in this proceeding;
[5] AND UPON hearing the oral submissions of counsel at the Court's General Sittings in Vancouver on April 4, 2005, and adjourning the matter to April 5, 2005, for the purpose of allowing an affidavit to be filed by the officer who determined not to defer the Applicant's removal from Canada;
[6] AND UPON directing myself to the tri-partite test set out in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.) and R.J.R Macdonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311.
ENDORSEMENT
[7] With respect to the requirement of the existence of a serious issue, the jurisprudence requires that the applicant show that the application is not frivolous or vexatious. This is a low threshold, although a more extensive review of the merits is required when the result of the interlocutory motion will in effect amount to a final determination of the action. See: R.J.R Macdonald Inc., supra at paragraph 51.
[8] It is settled law that a removal officer has some discretion to defer removal when requested. Case law has recognized that a removal officer may properly consider factors such as pending H & C applications that were brought on a timely basis but not resolved due to backlogs in the system (Simoës v. Canada (Minister of Citizenship and Immigration) (2000), 7 Imm. L.R. (3d) 141 (F.C.T.D.) at paragraph 12) and a pending H & C application based upon a threat of personal safety (Wang v. Canada (Minister of Citizenship and Immigration), [2001] 3 F.C. 682 (T.D.)). However, deferral for the sake of delay is not in accordance with the principles of the Act.
[9] Here deferral was requested while Mr. Man's application for a Temporary Resident Permit ("TRP") was processed. The submissions made in support of that application did not significantly go beyond those made in support of his prior negative humanitarian and compassionate application and his negative PRRA application (applications for judicial review of those decisions were dismissed, respectively, on March 7, 2005 and January 20, 2005). The submissions supporting the TRP application and the TRP application itself were provided to the removals officer when she was requested to defer Mr. Man's removal.
[10] The removals officer has sworn that she decided not to defer Mr. Man's removal because she did not know how long it would take to process the TRP application, because Mr. Man's past criminality and the danger opinion issued in respect of Mr. Man would complicate the TRP application, and because Mr. Man had exhausted all his other avenues to remain in Canada.
[11] In so concluding, the officer took into account the existence of the pending TRP application. As noted above, that application made no submissions with respect to the effect Mr. Man's removal would have on himself and his family beyond those already made in his humanitarian and compassionate application. I am satisfied on the record before me that the officer's reference to the exhaustion of Mr. Man's remedies to remain in Canada properly took cognizance of the matters raised before the officer that duplicated the negative humanitarian and compassionate application.
[12] In the unique and very specific facts before me, including the complete panoply of remedies Mr. Man pursued, and the freshness of the Court's judicial review of the negative humanitarian and compassionate decision and negative PRRA decision, I find no serious issue arises with respect to the officer's decision.
[13] Notwithstanding the decision of the Court in Hailu v. Canada (The Solicitor General of Canada) 2005 FC 229 (where no question was certified), with great respect, I would likely have concluded that a serious issue arose from the absence of any explanation anywhere for the decision not to defer removal (i.e. whether contained in the officer's notes, in the decision letter or by affidavit). This Court has held that a refusal of deferral may carry profound implications for the person concerned. (See, for example, Thomas v. Canada (MCI) 2003 F.C. 1477). Accordingly, I wish to underscore the Court's comments in Boniowski v. Canada (Minister of Citizenship and Immigration) 2004 FC 1161 that the respondent minister should "encourage" as a regular practice the keeping of notes by removals officers with respect to the exercise of their discretion whether to defer removal. Such notes fulfill any reasons requirement and would allow the Court to consider allegations of bias, fettering of discretion, breach of principles of fairness and the like. The absence of any note, affidavit or meaningful statement in a decision letter as to why deferral was refused should not, in my view, be allowed to immunize from effective judicial review the exercise of an, albeit limited, discretion.
[14] On the basis that no serious issue has been made out and the consent of the parties to the making of the order in paragraph 2 below;
ORDER
THIS COURT ORDERS that:
1. The motion for a stay is dismissed.
2. The Minister of Citizenship and Immigration is removed as a party respondent.
(Sgd.) "Eleanor R. Dawson"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2008-05
STYLE OF CAUSE: HUNG PONG MAN v. THE MINISTER OF
CITIZENSHIP AND IMMIGRATION et al.
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: April 4, 2005
REASONS FOR ORDER AND ORDER: DAWSON J.
DATED: April 5, 2005
APPEARANCES:
Mr. Warren Puddicombe FOR APPLICANT
Ms. Caroline Christiaens FOR RESPONDENTS
SOLICITORS OF RECORD:
Embarkation Law Group FOR APPLICANT
Barristers & Solicitors
Vancouver, BC
John H. Sims, Q.C. FOR RESPONDENTS
Deputy Attorney General of Canada
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