Docket: IMM-4803-15
Citation:
2015 FC 1235
Ottawa, Ontario, October 30, 2015
PRESENT: The
Honourable Mr. Justice Harrington
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BETWEEN:
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AVTAR SINGH
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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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ORDER AND REASONS
[1]
Mr. Singh is a failed refugee claimant. He is
scheduled to be returned to India this coming weekend. He asked the Removals
Officer for a deferral as he has a heart condition and his doctor said he
should not fly for at least four months.
[2]
The Removals Officer sent that report and Mr.
Singh’s medical records to a doctor in Ottawa hired by the Minister to review
these matters. Although invited to do so, the doctor did not consult with Mr.
Singh’s own doctor. After reviewing the records, which indicate that Mr. Singh
has heart issues, he said:
In the absence of any objective medical
evidence indicating any significant ongoing pathology, it is reasonable to
conclude that Mr. Singh’s recent history of chest pain complaints would not
preclude him from travelling via commercial airliner.
[3]
With that report in hand, the Removals Officer
simply said there were not sufficient reasons to postpone Mr. Singh’s removal.
He rubber-stamped the opinion without analysis.
[4]
Mr. Singh has filed an application for leave and
judicial review of the decision of the Removals Officer and, in the interim,
seeks a stay of removal pending the outcome of that application. This is why I
have granted the stay.
[5]
The bases of a stay of removal are well known.
It is upon the applicant to establish a serious issue, that irreparable harm
would be suffered if the stay were not granted and that the balance of convenience
favours him (Toth v Canada (Minister of Employment and Immigration)
(1988), 86 NR 302 (FCA), [1988] FCJ No 587 (QL); and RJR-MacDonald v Canada
(Attorney General), [1994] 1 S.C.R. 311).
[6]
One should also keep in mind that in cases such
as RJR-MacDonald it was noted that the judge in first instance is often required
to make immediate decisions on an incomplete record.
[7]
In my opinion, Mr. Singh’s health is a serious
issue. He may suffer irreparable harm such as a heart attack or death in taking
two flights to get from Montréal on November 1st to Delhi on November
3rd. The balance of convenience favours him. On the one hand there
is no great inconvenience to the Government to await the outcome of Mr. Singh’s
follow-up tests; while on the other hand it is most inconvenient to be dead.
[8]
During oral argument, I made reference to two
decisions of mine which are somewhat similar, and in both cases stays were
granted. See Solmaz v Canada (Minister of Public Safety and Emergency
Preparedness), 2006 FC 951 and Tobin v Canada (Minister of Public Safety
and Emergency Preparedness), 2007 FC 325. This is truly a case in which it
is preferable to maintain the status quo ante until the results of Mr.
Singh’s scheduled stress test are known.
ORDER
FOR REASONS GIVEN;
THIS COURT ORDERS that:
1.
The motion is granted.
2.
The removal of Mr. Singh scheduled for November
1, 2015 is stayed pending the outcome of his application for leave and, if
granted, judicial review of the decision of the removals officer not to grant
an administrative stay.
“Sean Harrington”
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