Docket: IMM-7001-21
Ottawa, Ontario, April 22, 2022
PRESENT: The Honourable Mr. Justice Southcott
BETWEEN:
HARPREET SINGH KHAIRA
AND
NATALIE CAMPOS
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
UPON MOTION filed April 13, 2022, seeking an Order staying the removal to India of the Applicant, Mr. Harpreet Singh Khaira, scheduled to be executed on April 24, 2022, until such time as the Application for Leave and for Judicial Review [ALJR] is determined with respect to the negative decision by an Immigration Officer [the Officer] dated October 6, 2021 [the Decision], rejecting Mr. Khaira’s application for permanent residence as the spouse of the other Applicant, Ms. Natalie Campos;
AND UPON reading the material filed with the Court and upon hearing the submissions of counsel for the parties;
AND UPON considering the tripartite test for a stay articulated by the Federal Court of Appeal in Toth v Canada (Minister of Employment and Immigration), (1988) 86 NR 302, 1988 CanLII 1420 (FCA) [Toth];
AND UPON noting that the Toth test is conjunctive, in that to be entitled to a stay of removal an applicant must satisfy all three elements of the test, being the establishment of a serious issue raised by the underlying application for judicial review, irreparable harm that would result from removal, and the balance of convenience favouring granting the stay;
AND UPON determining that the Applicants’ motion should be dismissed for the following reasons:
The Applicants have not satisfied the tripartite test for a stay articulated by the Federal Court of Appeal in Toth.
Mr. Khaira is a citizen of India who entered Canada in 2012 on a study permit. He and Ms. Campos, a Canadian citizen, were married in May 2018. In November 2018, Ms. Campos applied to sponsor Mr. Khaira for permanent residence. Because Mr. Khaira is inadmissible to Canada due to four convictions for driving while impaired (or impaired and disqualified), committed between 2014 and 2018, the Applicants sought relief from his inadmissibility, on humanitarian and compassionate [H&C] grounds.
In the Decision that is the subject of the underlying ALJR, the Officer rejected the sponsorship application. The Decision states that the Officer was not satisfied that Mr. Khaira was not inadmissible to Canada and was not satisfied that the Applicants were engaged in a genuine relationship and were cohabitating.
In support of their position that the ALJR raises serious issues with respect to the reasonableness of the Decision, the Applicants argue that the Officer ignored evidence supporting the genuineness of their relationship and arrived at adverse credibility findings based on minor inconsistencies and speculative conclusions resulting from their interviews.
My decision to dismiss this motion turns on the second element of the Toth test, the requirement for the Applicants to establish, based on clear, convincing and non-speculative evidence, a likelihood that irreparable harm will result from removal.
The Applicants submit that, if Mr. Khaira is removed, they face the prospect of prolonged separation, because he is criminally inadmissible and therefore would require a record suspension and an authorization to return to Canada before being readmitted to Canada. They argue this is a lengthy process, which could extend for many years, as Mr. Khaira will not be eligible for a record suspension until 10 years have passed since the completion of his last sentence.
Against this backdrop, the Applicants submit that such prolonged separation would impede their future plans to have children. The Applicants also argue that each of them requires the other’s support—Mr. Khaira requiring support from Ms. Campos to maintain restraint from consumption of alcohol and Ms. Campos requiring support from Mr. Khaira in connection with her father’s illness and requirement for a kidney transplant for which she may be donor.
The Applicants’ argument, that they would face a prolonged separation if Mr. Khaira is removed, is premised on him being unable to obtain H&C relief to permit his return to Canada and pursuit of permanent residence in the event the ALJR were granted. I agree with the Respondent’s argument that this is a speculative assertion insufficient to support a finding of irreparable harm.
I have considered Ms. Campos’s affidavit evidence that she has helped Mr. Khaira as he struggled with his issues, as well as his assertion before the Officer to the same effect. Ms. Campos’s affidavit also raises the possibility that she could be a kidney donor for her father but explains that she does not know if she is eligible. Particularly in the context of the above analysis of the Applicants’ prolonged separation argument, I agree with the Respondent’s submission that the evidence surrounding the effects of separation is not sufficiently non-speculative to warrant departure from the jurisprudence that hardships resulting from family separation do not typically constitute irreparable harm for purposes of the Toth test (see, e.g., Baron v Canada (Public Safety and Emergency Preparedness), 2009 FCA 81 at para 69; Atwal v Canada (Minister of Citizenship and Immigration), 2004 FCA 427 at paras 14-17).
The Applicants also rely on their above submissions, as to the effect of Mr. Khaira’s removal upon his immigration status, in support of an argument that removal would render the ALJR nugatory and that this result represents irreparable harm. As explained above, this is a speculative assertion insufficient to support a finding of irreparable harm. Moreover, the Court has held that the potential mootness of an underlying proceeding does not in itself constitute irreparable harm warranting the granting of a stay (see, e.g., El Ouardi v Canada (Solicitor General), 2005 FCA 42 at para 8).
Having found that the Applicants have not established irreparable harm, this motion must be dismissed, and it is unnecessary for the Court to consider the other elements of the Toth test.
THIS COURT ORDERS that the Applicants’ motion, that execution of Mr. Khaira’s removal be stayed, is dismissed.
“Richard F. Southcott”
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