Date: 20081001
Docket: IMM-4255-08
Citation: 2008
FC 1100
Toronto, Ontario, October 1, 2008
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
MOHAMMED MAZHARUL HASAN
RAWNAK JAHAN HASAN
Applicants
and
THE
MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
[1]
Upon
motion of the applicants for an order staying the execution of an order
requiring them to leave Canada for Bangladesh on October 3, 2008;
[2]
And upon
reviewing the materials submitted by the parties and receiving their oral
submissions at a hearing on September 30, 2008;
[3]
And upon
being satisfied that the applicants have not met the test for a stay for the
following reasons:
[4]
The applicants
allege that a serious issue, one which would likely result in a successful
application for judicial review, arises from the decision of an immigration
officer not to defer their removal from Canada until they received the results
of their recent application for humanitarian and compassionate relief (likely
to arrive three years from now).
[5]
They suggest
that the officer erred in three respects:
a. The officer mistakenly
noted that the applicants had submitted a total of three applications for
humanitarian and compassionate relief. In fact, they had only submitted two
H&Cs. The second had been filed in May 2008 and supplemented with
additional submissions in September 2008.
b. The officer failed to
consider the fact that there were additional risk factors affecting the
applicants and their children that had not yet been dealt with, notwithstanding
that the issue of risk had arisen in their unsuccessful refugee claims, their
previous H&C application, and their requests for pre-removal risk
assessments. The applicants suggest that the officer should have realized that
the risk to the children in Bangladesh had not yet been assessed, nor had the
question whether the risk to the parents might give rise to undue hardship, a
factor to be considered in their outstanding H&C.
c. The officer failed to
give due consideration to the best interests of the applicants’ three young
Canadian-born children. The officer erred in identifying family members who
might be in a position to care for the children if they stayed in Canada and
failed to mention the serious issues facing children in Bangladesh, such as
poor educational opportunities, diseases and natural disasters.
I note that the discretion
available to removal officers is quite narrow. I stated in Ramada v. Canada
(Solicitor General), 2005 FC 1112, at para. 3:
Enforcement officers have a
limited discretion to defer the removal of persons who have been ordered to
leave Canada. Generally speaking, officers have an obligation to remove persons
as soon as reasonably practicable (s. 48(2), Immigration and Refugee
Protection Act, S.C. 2001, c. 27). However, consistent with that duty,
officers can consider whether there are good reasons to delay removal. Valid
reasons may be related to the person's ability to travel (e.g. illness
or a lack of proper travel documents), the need to accommodate other
commitments (e.g. school or family obligations), or compelling personal
circumstances (e.g. humanitarian and compassionate considerations).
(See: Simoes v. Canada (Minister of Citizenship and Immigration),
[2000] F.C.J. No. 936 (T.D.) (QL), Wang v. Canada (Minister of
Citizenship and Immigration), [2001] 3 F.C. 682 (T.D.) (QL), Prasad
v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No.
805 (T.D.) (QL); Padda v. Canada (Minister of Citizenship and
Immigration), [2003] F.C.J. No. 1353 (F.C.) (QL)). It is clear, however,
that the mere fact that a person has an outstanding application for
humanitarian and compassionate relief is not a sufficient ground to defer
removal. On the other hand, an officer must consider whether exigent personal
circumstances, particularly those involving children, justify delay.
[6]
Regarding the
first alleged error, I find that it was minor and had little impact on the
officer’s analysis. It would be quite another thing if the officer had
concluded that the applicants had received a negative result on a prior H&C
application when they had not even submitted one. But that is not this case.
[7]
With respect
to the second issue, it seems to me that the question of any risk to the
children should form part of the analysis of their best interests and need not
be considered separately. With respect to the alleged risks to the applicants,
the officer appropriately noted the lack of success in respect of previous
allegations of risk. Whether the applicants might be able to show undue
hardship in their H&C application, with risk being one of the many relevant
factors taken into account, is not something a removals officer would be in a
position to evaluate.
[8]
With respect
to the third issue, the best interests of the children, I find that the
officer’s analysis was adequate considering the circumstances and the limited
range of his discretion. There was nothing in the representations to the
officer that might qualify as “exigent personal circumstances” relating to the
children. As for the error identifying the family members remaining in Canada
who might be able to help with the children’s care, I note that the applicants
did not mention in their representations the possibility that the children
might remain in Canada or refer to any problems they were having in making
arrangements for them if that were the case. In these circumstances, I do not
regard the officer’s error as serious. If the applicants had mentioned that
there were difficulties relating to the children’s care requiring a temporary
deferral of the parents’ removal, I might have concluded otherwise.
[9]
As I
have concluded that the applicants have not presented a serious issue to be
tried, it is unnecessary for me to consider the other branches of the test for
a stay.
ORDER
THIS COURT ORDERS that the motion is dismissed.
“James
W. O’Reilly”
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