Date:
20130524
Docket:
IMM-6506-12
Citation:
2013 FC 550
BETWEEN:
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SULTANA NARNIGER BEGUM MOHAMMAD
RUSLAAN HOSSAIN
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION AND
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Respondents
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REASONS FOR ORDER
[1]
Earlier
today, I heard a motion by the applicants, mother and son, to defer their
removal to Bangladesh scheduled for tomorrow, until the Court rules on their
application for judicial review of a refusal on behalf of the Minister of
Citizenship and Immigration to allow them to apply for permanent residence from
within Canada on humanitarian and compassionate grounds.
[2]
I
granted the stay. This is why.
[3]
Ms.
Begum and her son have had a long and convoluted history in Canada. They arrived here in 1999 when young Mohammad was less than 2 years old.
[4]
They
were denied refugee status and their application for leave to judicially review
that decision was dismissed. Thereafter, they had benefit of a pre-removal risk
assessment which also was negative. They have been removal ready since 2004, in
the sense of there being no legal impediments thereto.
[5]
The
underlying decision in this case is a refusal to permit them to apply for
permanent residence from within Canada. That decision was rendered in 2012.
Considered a flight risk, Ms. Begum has been in detention for the past
year.
[6]
In
December 2012, leave was granted by Mr. Justice Manson. On 19 March 2013, the
judicial review was heard on the merits by Madam Justice Strickland. She
reserved judgment, which has not yet been rendered.
[7]
On
15 May 2013, the applicants were served with a “notification for removal
arrangements” informing them that their removal was scheduled for 25 May 2013.
This is a form notice. There was no mention therein of the proceedings in this
Court.
[8]
Through
counsel they requested a deferral. This is what the Inland Enforcement Officer
of the Canada Border Service Agency said yesterday:
The Canada Border Service Agency (CBSA) has an
obligation under section 48 of the Immigration and Refugee Protection Act
to enforce removal orders as soon as possible. Having considered your request,
I do not feel that a deferral of the execution of the removal order is
appropriate in the circumstances of this case.
[9]
Clearly,
the Officer had no feelings at all!
[10]
Accompanying
his refusal letter were notes to file, also dated yesterday. Among other
things, he quoted, in referring to judicial review of negative humanitarian and
compassionate decisions, from the enforcement manual ENF 09 Judicial Review,
section 5.22.:
[…] have the right
to seek judicial review of any decision, order, etc., made pursuant to the
IRPA. The mere filing of a Court application, however, does not necessarily
affect normal immigration processing and does not preclude the Minister’s
officials from enforcing the provisions of the IRPA, including the enforcement
of a removal order.
Strictly speaking, even if judicial
review is granted, the remedy is to refer the matter back to another officer
for reconsideration of the application for permanent residence within Canada. A successful judicial review of such cases does not operate as a stay of removal.
[11]
Thus,
the enforcement manual ENF 09 could well have read: “The mere filing of a court
application; the mere granting of leave; the mere granting of judicial review,
however does not necessarily affect normal immigration processing and does not
preclude the Minister’s officials from enforcing the provisions of the IRPA,
including the enforcement of a removal order.”
[12]
During
the hearing before me, I said I was not particularly interested in the
tripartite test for an interlocutory stay which is that there be a serious
issue, irreparable harm if the stay were not granted and if the balance of
convenience favoured the applicant. I was more interested in the administration
of justice.
[13]
I
wanted to know if the Enforcement Officer was aware of the court proceedings
when he served the notice of removal. The record is silent. Did he assume there
was no merit to the judicial review, notwithstanding Mr. Justice Manson has
already decided there was a fairly arguable case? It is only in the notes to
file, dated yesterday, that there is an acknowledgment that there are, in fact,
ongoing court proceedings.
[14]
The
applicants have been removal ready for almost nine years. Why incarcerate Ms.
Begum for a year, and deprive her of her decent income as a teacher, and then
decide to remove her and her son, a son who knows nothing of Bangladesh?
[15]
This
motion deals with the administration of justice, and disrespect of this Court.
It is not quite contempt, but not far off. The sub judice rule is almost
on point. Not only were proceedings ongoing, but a hearing on the merits of the
judicial review has taken place.
[16]
If
the Canada Border Services Agency is interpreting section 48 of the Immigration
and Refugee Protection Act which now requires removal “as soon as possible”
rather than “as soon as practical”, so that the only way the removal can be
stopped is by court order, then so be it! What happened to common sense?
[17]
Counsel
for the Minister informed the Court that the applicants would be removed on the
government’s dime. If they are, however, ultimately successful in their
application for permanent residence from within Canada, notwithstanding that
they would be outside Canada, the government is not undertaking to pay their
way back, the same government which has prevented Ms. Begum from earning any
money over the last year.
[18]
The
Minister “graciously” conceded there was a serious issue, but argued that there
was no irreparable harm and that the balance of convenience favoured him. I am
not prepared to second guess Mr. Justice Manson, and whatever Madam Justice
Strickland may decide. The irreparable harm is that the applicants would be removed
from Canada without the wherewithal to return should they be ultimately
successful. The balance of convenience favours them.
[19]
Only
because costs were not sought, costs will not be granted.
“Sean Harrington”
Toronto, Ontario
May 24, 2013
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