Docket: IMM-4461-11
Citation: 2011 FC 906
BETWEEN:
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CLAUDINE NEWMAN KELLY
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
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Respondent
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REASONS
FOR ORDER
RENNIE J.
[1] It
is well established that the threshold for the serious issue test is elevated
when the grant of the applicant’s motion would effectively give the relief
sought in the underlying application for leave and for judicial review. That is
the test that applies in the case before the Court today. This reasoning has
been applied in the context of removal orders by the Federal Court of Appeal in
Baron v. Canada (M.P.S.E.P.), 2009 FCA 81, where the Court stated that
the application judge must identify at least one issue that carries with it the
likelihood of success in the underlying application. Bearing in mind that the
standard of review of an enforcement officer’s decision is that of
reasonableness, an applicant must be able to put forward “quite a strong case”
to succeed on a judicial review challenge of such a decision.
[2] No serious issue can be said to arise from the
officer’s decision. It is neither the purpose of the IRPA, nor the role
of this Court, to tailor the outcomes to provide the most advantageous
situation to allow parties to confront medical issues which, inevitably, all
Canadians face. The officer considered the evidence before him with respect to
the impact of removal and took into account the recent in-land sponsorship
application. The officer acknowledged that removal would be difficult, both for
the applicant and her Canadian partner, but noted that the applicant’s partner
had available all the medical services and support system available to any
other citizen of Canada who might be similarly
situated. While the reasons are admittedly thin and barely compelling, they
nevertheless meet the requisite standards of transparency and justification,
nor does any legal question arise that meets the standard expressed in Baron.
[3] Secondly, an enforcement officer acting under
section 48 of the Immigration and Refugee Protection Act has a very
limited discretion when asked to defer removal. The applicant here has not
shown that she faces any risk upon return to Jamaica, nor has she established
that there are “special considerations” as described by the jurisprudence that
require an officer to defer her removal to allow her in-Canada application to
be processed. The applicant’s spousal application was filed after she was
“removal ready”, regrettably some few weeks late, and she was therefore
ineligible for the administrative stay of removal that is implemented for
in-land spousal applicants according to Immigration Manual IP8. Moreover, the
Federal Court of Appeal in Baron has affirmed that the existence of an
alternate way to return to Canada weighs heavily against the
granting of a judicial stay of removal. In this context, no issue arises from
the exercise of discretion that gives rise to an arguable case with a
likelihood of success.
[4] Turning to the issue of irreparable harm, an
enforcement officer is not an H&C Officer, and he is accordingly under a
very limited duty to consider the best interests of the applicant’s common law
Canadian spouse. Here, it is compellingly argued that the collateral or
consequential impact of the removal of the applicant on her Canadian common-law
spouse’s ability to live independently and continue to care for himself while
he confronts significant medical challenges constitutes irreparable harm.
[5] While irreparable harm must be personal to the
applicants, the courts look beyond the applicant to the interests of the Canadian
born children and spouses who would remain: Tesoro v. Canada (M.C.I.) 2005
FCA 148 at 34. The jurisprudence does not confine the analysis of irreparable
harm to the applicant alone. However, the ensuing consequences rarely reach
beyond the usual hardships, loss and sorrow associated with deportation. Viewing
the matter through the lens of the common law spouse, the fact that he may, and
I emphasize the speculative and prospective nature of the possibility, have to
rely on nurses, home care, or some form of assisted living by reason of the
removal of his partner does not constitute irreparable harm. It is a challenge
faced daily by thousands of other Canadians. While difficult, it does not
constitute special circumstances as discussed by the Court in Baron and
Simones.
[6] Irreparable harm not having been established, I
need not address the balance of convenience. If necessary, I would, however,
decide that it falls in the Minister’s favour. The applicant chose the in-land
sponsorship application, as opposed to an H & C application and must now
live with the consequences. Moreover, the application was not timely, as the
officer noted. In those circumstances, the balance of convenience clearly lies
with the Minister. The balance of any inconvenience which the applicant may
suffer as a result of removal from Canada
does not outweigh the public interest which the respondent seeks to maintain in
the application of the Immigration and Refugee Protection Act. The
applicant has had the benefit of a Convention Refugee claim and of a PRRA, and
has been in Canada without status. The
enforceable removal order must now be enforced.
"Donald
J. Rennie"
Toronto,
Ontario
July
19, 2011
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4461-11
STYLE OF CAUSE: CLAUDINE
NEWMAN KELLY v. THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
PLACE OF HEARING: TORONTO, ONTARIO
DATES OF HEARING: JULY 18, 2011
REASONS FOR ORDER
BY: RENNIE
J.
DATED: July 19, 2011
APPEARANCES:
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Aadil Mangalji
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FOR THE APPLICANTS
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Modupe Oluyomi
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FOR THE RESPONDENTS
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SOLICITORS OF RECORD:
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Long Mangalji
LLP
Barristers & Solicitors
Toronto, Ontario
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FOR THE APPLICANTS
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MYLES J. KIRVAN
Deputy Attorney General of Canada
Toronto, Ontario
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FOR THE RESPONDENTS
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