Bader v. Canada (Minister of Citizenship and Immigration), 2002 FCT 304

Date: 20020321

Docket: IMM-1175-02

Neutral Citation: 2002 FCT 304

BETWEEN:

                         ANDRAS BADER, ANDRASNE BADER, ERZSEBET BADER,

ANDRAS BADER JR.

Applicants

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

BEAUDRY J.:

[1]         This is a stay application brought at the 11^th hour by the applicants asking this Court to

stay a removal order that became effective on December 14, 2001, after the applicants' application for leave and judicial review of their failed Convention refugee claim was dismissed.

[2]         The applicants are a husband, wife and their two children, all of Roma ethnicity from

Hungary. They fled Hungary in 1999 and claimed Convention refugee status in Canada. Their claim was denied on July 27, 2001. This negative Convention refugee decision reached the applicants on or about August 1, 2001. On August 15, 2001, the applicants filed an Application for Leave and Judicial Review of their failed refugee claim.

[3]         This is where the facts of the case diverge severely. I have reviewed all of the

materials submitted to this Court and have carefully read the affidavits filed in support of both the applicants' and the respondent's respective positions.

[4]         The facts put forth by each of the parties are so diametrically opposed that the reader

wonders if each side is talking about the same set of facts. I need not go into detail of every factual discrepancy, as such a task would be far too onerous, nor is a detailed discussion of every fact essential to the proper disposition of this matter.

[5]         Suffice it to say that the applicants' Convention refugee claim was denied on

July 27, 2001. The applicants were advised of this decision on August 1, 2001. Their counsel at the time, Peter Ivanyi, filed with this Court the applicants' Application for Leave and Judicial Review of the failed Convention refugee claim. That application was denied leave by Kelen J. on December 11, 2001. The removal order was effective that date.

[6]         However, on February 15, 2002, the applicants were granted their wishes to have the

removal order deferred to get their affairs in order. The removal officer deferred removal until March 22, 2002.

[7]         One full month later, on March 14, 2002, four weeks after the applicants had been

advised of the deferred removal date and just one week before the actual date, the applicants file their stay of removal application. They cite Mr. Ivanyi's gross incompetence citing, i.e., missed statutory filing time limitations, bad legal advice, him going on holidays and missed appointments as their reason for filing the stay application at the 11^th hour. Yet the applicants make no effort to substantiate the allegations of solicitor incompetence by either affording

Mr. Ivanyi the opportunity to respond to the complaints or by submitting evidence that they made a complaint to the Law Society.

[8]         Regarding allegations of solicitor incompetence, I find the words of Pelletier J. (now J.A.)

in Nunez v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 555, at paragraph 19, to be apposite in the present case. He said:

I am not prepared to accept an allegation of serious professional misconduct against a member of the bar and an officer of this court without having the member's explanation for the conduct in question or evidence that the matter has been referred to the governing body for investigation. In this case, there was ample opportunity to do one or the other but neither was done. The failure to do so is inconsistent with the gravity of the allegations made. This is not a question of being solicitous of lawyers' interests at the expense of their clients. It is a question of recognizing that allegations of professional negligence are easily made and, if accepted, generally result in the relief sought being granted. The proof offered in support of such an allegation should be commensurate with the serious nature of the consequences for all concerned.

Therefore, I will not entertain any assertion of incompetence of counsel without even a scintilla of corroborating evidence or evidence in reply in front of me.

[9]         That aside, the applicants state in their sworn affidavit that on February 15, 2002, the

removal officer did not agree with the applicants that their removal date should be deferred, thereby committing an error of law. A supporting affidavit submitted by the respondent swears that the removal officer did in fact defer the applicants' removal date by over one month, to March 22, 2002, thereby committing no error of law and in the process afforded the applicants ample procedural fairness.

[10]       In summary then, on March 13, 2002, the applicants filed an application for leave and

judicial review of the removal officer's alleged decision not to defer the removal date. On

March 14, 2002, the applicants filed their application to have their removal stayed, pending determination of their judicial review application.

[11]       If the applicants are successful on this stay application, their removal will be postponed

until after the judicial review of the removal officer's decision is completed. If the applicants were to be successful in their judicial review application of the removal officer's decision not to change the removal date, i.e., the removal officer committed an error of law when choosing a removal date, the removal date would then also be postponed until a new removal date decision could be made.   

[12]       Therefore, the relief being sought by the applicant in this stay application and the relief

sought in the underlying judicial review application is exactly the same relief - deferral of the removal order.

[13]       As Pelletier J. stated in his thorough decision of Wang v. Canada (Minister of

Immigration and Citizenship, [2001] 3 F.C. 682, at paragraph 9:

[...] The test for the granting of an interlocutory injunction is the tri-partite test set out in Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, and adopted in the context of stay of removal applications by the Federal Court of Appeal in Toth v. Canada (Minister of Employment and Immigration) (1988), 6 Imm. L.R. (2d) 123 (F.C.A.). That test requires that three elements be satisfied, "serious issue to be tried", "irreparable harm" and "balance of convenience". [...]

The Supreme Court of Canada has held that the test of "serious issue to be tried" is simply that the issue being raised is one which is not frivolous: see RJR-MacDonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. 311. This is a very low threshold.

[14]       However, Pelletier J. in Wang, supra, then went on to hold that if, by granting the stay

would afford the applicant the same relief that the underlying application would bring, then the first step takes on a much higher threshold. Dealing with substantially the same issue as the issue before me in the case at bar, Pelletier J. stated in Wang, at paragraph 10, that:

[...] I am therefore of the view that where a motion for a stay is made from a removal officer's 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.

He then held at paragraph 11, that the test of serious issue becomes the "likelihood of success" on the underlying application, since granting the relief sought in the interlocutory application will give the applicant the relief sought in the application for judicial review.

[15]       Therefore, because the relief sought by the applicants in the case at bar is the same relief

that they are attempting to obtain on the underlying judicial review application, i.e., deferral of the removal order, I must delve into the applicants' underlying judicial review claim deep enough to satisfy myself that they have a likelihood of success on their judicial review application before I go to steps two and three.

[16]       After reading all of the materials submitted by the parties and after carefully comparing

the sworn affidavits filed in this stay application, I make an explicit finding of fact that the applicants, after meeting with Immigration officials on February 15, 2002, did in fact get the removal date deferred over one month to March 22, 2002, so they could get their affairs in order prior to departure.

[17]       In support of this finding of fact, I quote paragraph 5, of the affidavit of Maria Cyr,

Enforcement Supervisor, Failed Refugee Project, Greater Toronto Enforcement Center, filed by the respondent in the Motion Record. She states:

On February 15, 2002, I met with the Applicants to discuss their removal preparations. At that time, the Principal Applicant asked that I defer removal to allow him and his family an opportunity to get their affairs in order. I acceded to their request and granted the Applicants one month to get their affairs in order. A copy of my note to file regarding this meeting is attached to this my Affidavit as Exhibit "A".

Therefore, I hold that the removal officer not only gave the applicants a chance to make submissions as to why their removal date should be deferred, but actually deferred the removal date by over one month. As a consequence, they have no likelihood of success on their underlying judicial review application asserting that the removal officer committed an error of law when choosing a date for removal.

[18]       Furthermore, even if I were to use the very low threshold step of "is there a serious issue

to be tried" instead, I would have to answer that question in the negative as well. In fact, I find there is no merit whatsoever to the applicants' assertion that the removal officer made an error of law when reaching her decision regarding the applicants' removal date. Furthermore, Maria Cyr states in paragraph 6 of her affidavit:

Removal arrangements were made for all four Applicants for March 22, 2002. The Applicants were advised of these arrangements in writing. The Applicants did not make any further requests for a deferral. [emphasis added]

[19]       As an aside, the applicants also mention that they need time to file their application on

humanitarian and compassionate grounds (H & C application). I note that it could have been filed at any time after December 14, 2001, when their application for leave and judicial review of their failed Convention refugee claim was dismissed. It is now March 20, 2002 - three months after the fact - and the applicants have still not filed their H & C application.

[20]       Even if they had filed their H & C application, before this Court will consider deferring a

removal order to allow an H & C application to be adjudicated on, the H & C application must have been filed on a timely basis: see the oft quoted and followed passage of Nadon J. (now J. A.) in Simoes v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 936, at paragraph 12, where he states:

In my opinion, the discretion that a removal officer may exercise is very limited, and in any case, is restricted to when a removal order will be executed. In deciding when it is "reasonably practicable" for a removal order to be executed, a removal officer may consider various factors such as illness, other impediments to travelling, and pending H & C applications that were brought on a timely basis [...]

And at paragraph 13, he states:

With respect to pending H & C applications, certainly, the mere existence of such an application cannot bar the execution of a valid removal order. "To hold otherwise," as Noël J. aptly observed, "would, in effect, allow claimants to automatically and unilaterally stay the execution of validly issued removal orders at their will and leisure by the filing of the appropriate application. This result is obviously not one which Parliament intended." [Citations omitted]

[21]       The Applicant's counsel referred me to Naredo v. Canada (MCI), [1995] 89

F.T.R. 94 (Fed. T.D.). The facts in the Naredo case are not the same.

[22]       As a result, I need not address submissions regarding an H & C application that

has yet to be filed or that all the applicants' woes allegedly stem from prior dealings with a supposed incompetent counsel who was handling the applicants' claim prior to their current counsel. Nor in light of my finding that the applicants underlying judicial review has no "likelihood of success" need I go to the second or third step of the tri-partite test used for stay applications.

[23]       Accordingly, this last minute motion for stay of the removal order against the

applicants is dismissed.

     "Michel Beaudry"      

Judge

OTTAWA, ONTARIO

March 21, 2002