Sharma v. Canada (Minister of Citizenship and Immigration), 2002 FCT 94

Date: 20020125

Docket: IMM-182-02

Neutral citation: 2002 FCT 94

Ottawa, Ontario, this 25th day of January, 2002

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                                        JAGDISH MITTER SHARMA

                                                                                                                                                       Applicant

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 This is a motion by Jagdish Mitter Sharma (the "applicant") for an order staying his removal to India. The removal is scheduled for January 28, 2002.

[2]                 The applicant is a citizen of India who arrived in Canada on October 11, 1998. The applicant made a claim for refugee status and the claim was rejected.

[3]                 In November, 2000 the applicant filed an application for consideration on humanitarian and compassionate grounds.

[4]                 The applicant's mother and sister and her two children reside in Canada. As the applicant's sister is separated from her husband, and the children have no contact with their father, the applicant alleges that he is the primary caregiver. The applicant's sister has been diagnosed with depression.

[5]                 The applicant also claims that his mother is elderly and she cannot supply emotional support for his sister. He stated that his mother relies on him for assistance.

[6]                 The applicant is self-employed despite not having a work permit.

[7]                 The applicant's scheduled removal was set for November 26, 2001, but was deferred so that an enforcement officer could resolve some of the issues surrounding his removal.

[8]                 As of January 15, 2002 the respondent indicated that the applicant's application for H & C consideration would not be delegated for review/decision for a further six months.

[9]                 The parties indicated at the hearing that it would take a further 12 months for the officer to reach a decision after the H & C file was transferred to the officer.

[10]            The file is at CIC Scarborough where apparently the backlog of files is more severe than at other locations.

[11]            The applicant's sister is employed.

Issues

[12]            Should the applicant's removal be stayed?

Analysis and Decision

[13]            It is now accepted that a removal officer has some discretion and may in certain circumstances, stay the removal of the applicant (see Wang v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 295 (F.C.T.D.)).

[14]            In order to obtain a stay, the applicant must satisfy the requirements set out in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.) at page 305:

This Court, as well as other appellate courts have adopted the test for an interim injunction enunciated by the House of Lords in American Cyanamid Co. v. Ethicon Ltd. [1975] A.C. 396 [Footnote 3 appended to judgment]. As stated by Kerans J.A. in the Black case supra:

The tri-partite test of Cyanamid requires, for the granting of such an order, that the applicant demonstrate, firstly, that he has raised a serious issue to be tried; secondly, that he would suffer irreparable harm if no order was granted; and thirdly that the balance of convenience considering the total situation of both parties favors the order.

The applicants must meet all three branches of the tri-partite test.

Serious Issue

[15]            It goes without saying that the filing of an H & C application will not automatically stay a removal order. The factors of each case must be considered. In this application, the applicant has raised the following serious issues:

1.          Is it only exceptional circumstances that will allow deferral of the removal, pending the outcome of the H & C application?

2.          Does an H & C decision need to be pending in the near future to justify deferral of the removal pending the delivery of the decision?

[16]            Irreparable Harm

The removal of the applicant's support for his sister, her children and his mother would in the facts of this case, cause irreparable harm for the de facto family unit which, on the facts of this case, includes the applicant.

[17]            Balance of Convenience

The respondent has an obligation pursuant to section 48 of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") to execute removal orders "as soon as reasonably practicable". I am of the opinion that the respondent can still meet the requirements of the Act if the removal is stayed until the H & C application is dealt with. The balance of convenience favours the applicant.

[18]            The application for a stay of the removal order to remove the applicant to India on January 28, 2002 is hereby granted pending the final disposition of the H & C application and if the H & C application is refused, pending the disposition of the application for leave and judicial review.

ORDER

[19]            IT IS ORDERED THAT the application for a stay of the removal order to remove the applicant to India on January 28, 2002 is hereby granted pending the final disposition of the H & C application and if the H & C application is refused, pending the disposition of the application for leave and judicial review.

                                                          "John A. O'Keefe"                    

                                                                            J.F.C.C.                      

Ottawa, Ontario

January 25, 2002