Date: 20070725
Docket: IMM-2887-07
Citation: 2007
FC 771
Ottawa, Ontario, July 25, 2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
KWAME
BONA GYAN
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
Applicant sought an Order for a stay of deportation scheduled to occur on
Wednesday, August 8, 2007, pending consideration of the application for leave
and, if leave is granted, of the application for judicial review.
[2]
The
Applicant has had a negative refugee claim and a negative PRRA. He has a
pending H&C filed shortly after he married his wife, a Canadian citizen.
[3]
He says
that there are exceptional circumstances which should have caused the Officer
to exercise his discretion to defer removal until his H&C application is
decided.
[4]
The
Applicant complains of the delay in processing H&C applications, that his
wife would suffer hardship due to separation and that the best interests of his
child in Ghana would be affected because he
could no longer send money from Canada.
[5]
It is
beneficial to remember that the Minister has a legal obligation imposed by
Parliament under s. 48 of the Immigration and Refugee Protection Act to
effect removal “as soon as reasonably practicable”. The request for deferral
must be weighed against this obligation.
[6]
In Wang
v. Canada (Minister of Citizenship and
Immigration) (T.D.),
2001 FCT 148, Justice Pelletier (as he then was) encapsulated the principles
applicable to deferrals. It is relevant that if there is an alternative remedy,
such as a right of return, that factor should weigh heavily against deferral.
The Applicant has two possible alternative remedies which could lead to a right
to return to Canada – a pending H&C and a
possible sponsorship application.
[7]
Again, in Wang,
at paragraph 48, the Court found that deferral for the mere sake of delay is
not in accordance with the imperatives of the Act. Family hardship cases are
unfortunate but they can be remedied by readmission.
[8]
The
hardship to be suffered in this case is the hardship which flows naturally from
deportation. These consequences do not constitute compelling circumstances upon
which to ground deferral.
[9]
The
Enforcement Officer (Removals Officer) is not authorized to conduct a H&C
evaluation. There is no risk of death, extreme sanction or inhumane treatment
which could follow on either the Applicant or members of his family which might
justify deferral.
[10]
Reasonable
delay in processing applications is hardly a grounds for deferral particularly
when one bears in mind that the H&C process is an exception to the general
legislative intent that persons apply to be in Canada from outside Canada.
[11]
There are
no grounds for deferral and no basis for a stay.
[12]
Therefore,
it is ordered that this application for a stay is dismissed.
ORDER
IT IS ORDERED THAT this application for a stay is
dismissed.
“Michael
L. Phelan”
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