Date: 20040205
Docket: IMM-968-04
Citation: 2004 FC 194
Ottawa, Ontario, this 5th day of February, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
ANITA HORVATH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Ms. Anita Horvath, a citizen of Hungary, asks me to stay the execution of a removal order requiring her to leave Canada on a flight departing at 6:15 this evening. Ms. Horvath came to Canada on February 15, 2002, and made a refugee claim upon arrival. That claim has been rejected by the Refugee Protection Division.
[2] On April 13, 2002 the applicant married Gyula Matyas Pusztai, also of Hungarian Roma origin and determined on September 25, 2000, to be a convention refugee. Mr. Pusztai has applied for permanent resident status, as has Ms. Horvath. The applicant's written submissions indicate that there is also a pending application for the exercise of the Minister's Humanitarian and Compassionate ("H & C") discretion, pursuant to section 25(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), initiated in July 2003. In August 2003 she also applied for a Pre-Removal Risk Assessment ("PRRA").
[3] On December 3, 2003, a negative PRRA decision was issued. Ms. Horvath was served with the PRRA results and the removal order on January 21, 2004. An application for leave and for judicial review of the enforcement officer's decision to issue the removal order and of the PRRA officer's decision was served and filed with the court late on February 4, 2004, together with this stay application. No explanation has been offered for the delay in commencing the stay application. It appears that Ms. Horvath has been represented by counsel for some considerable time.
[4] Ms. Horvath contends that the pending leave and H & C applications should suffice to satisfy the serious issue branch of the tripartite test set out in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A). I disagree. The fact that there are outstanding applications for judicial review or a pending H & C application does not, in itself, support a finding of serious issue. See for example: Moroz v. Canada (Minister of Citizenship and Immigration) (Sept 12, 2003, Ottawa, IMM-6844-03) (F.C.T.D.), Vakiriak v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1682 (T.D.)(QL) and Ikeji v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 885 (T.D.)(QL).
[5] From a review of the materials submitted in support of the application, I can find no other basis for a finding that there is a serious issue to be tried with respect to the underlying matters. The applicant has argued that the enforcement officer improperly exercised his discretion by failing to take into account the effect of his decision on the applicant and her family. Family separation is, unfortunately, one of the regrettable consequences of removal from this country. There is nothing unique or particularly compelling about the circumstances of the applicant in this case that the officer would have been required to take into consideration.
[6] The applicant further submits that section 233 of the Immigration and Refugee Protection Regulations, SOR/2002-227 creates a statutory stay to bar the execution of a removal order pending a final decision on a H & C application.
Section 233 reads as follows:
|
Stay of removal - humanitarian and compassionate considerations
233. A removal order made against a foreign national, and any family member of the foreign national, is stayed if the Minister is of the opinion under subsection 25(1) of the Act that there exist humanitarian and compassionate considerations, or public policy considerations, and the stay is effective until a decision is made to grant, or not grant, permanent resident status.
[emphasis added]
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Sursis : motifs d'ordre humanitaire
233. La décision du ministre prise au titre du paragraphe 25(1) de la Loi selon laquelle il estime que des circonstances d'ordre humanitaire existent ou que l'intérêt public le justifie emporte sursis de la mesure de renvoi visant l'étranger et les membres de sa famille jusqu'à ce qu'il soit statué sur sa demande de résidence permanente.
[mon souligné]
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[7] It is clear from the text that the stay contemplated by the regulation applies to pending applications for permanent resident status if and only if the Minister has reached the opinion that there are pertinent humanitarian and compassionate or policy considerations. The applicant's H & C application has not yet reached that stage, and therefore, this regulation is not applicable to her situation.
[8] Having concluded that there is no serious issue to be tried, I need not go on to consider the other submissions received with respect to the irreparable harm and balance of convenience tests. In the circumstances and following a thorough review of the applicant's written submissions, I have also concluded that there is nothing to be gained by hearing counsel on this application.
[9] Therefore, this motion is dismissed.
ORDER
THIS COURT ORDERS that:
This motion is dismissed.
"Richard G. Mosley"
F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-968-04
STYLE OF CAUSE: ANITA HORVATH
AND
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION CANADA
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER AND ORDER BY: The Honourable Mr. Justice Mosley
DATED: February 5, 2004
WRITTEN REPRESENTATIONS BY:
Elizabeth Jaszi FOR THE APPLICANT
Stephen Jarvis FOR THE RESPONDENT
SOLICITORS OF RECORD:
ELIZABETH JASZI FOR THE APPLICANT
Mississauga, Ontario
MORRIS ROSENBERG
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT
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