Date: 20100423
Docket: IMM-2026-10
Citation: 2010 FC 440
Ottawa, Ontario, April 23, 2010
PRESENT:
The Honourable Mr. Justice Mainville
BETWEEN:
COLLIN
DEXTER WYNNE
Applicant
and
MINISTER OF PUBLIC SAFETY
AND EMERGENCY
PREPAREDNESS
Respondent
ORDER AND REASONS FOR ORDER
WHEREAS the applicant
filed a motion on April 19, 2010, for an order staying the
enforcement of a removal order scheduled for April 25, 2010, until
the Court disposes of his application for leave and judicial review of a
decision by Officer Y.L. Cheung of the Canada Border Services Agency
refusing his application for an administrative stay of his removal from Canada;
HAVING
REVIEWED
the applicant’s motion record and the respondent’s reply record;
HAVING HEARD counsel for
the parties via a telephone call in Montréal and Ottawa on
April 22, 2010;
HAVING
APPLIED
the tripartite test articulated by the Supreme Court of Canada
in Manitoba (A.G.) v. Metropolitain Stores Ltd., [1987] 1
S.C.R. 110 and R.J.R. MacDonald Inc. v. Canada
(Attorney General), [1994] 1 S.C.R. 311, which the
Federal Court of Appeal adopted to determine motions for a stay
of removal in Toth v. Canada (Minister of Employment and Immigration
(1998), 86 N.R. 302;
THE COURT ORDERS that the
motion for a stay is dismissed on the following grounds:
Background
[1]
The
applicant is a single 35‑year‑old citizen of Saint Vincent. He arrived
in Canada on
October 11, 2005, and has been residing in the Montréal area since
then without status. The applicant states that, since his arrival, he has been living
with his niece, Roseanne Hackett, and her husband,
Mr. Osborn Anthony, a Canadian citizen.
[2]
In
October 2009, the police conducted a search at the applicant’s residence. It
was during the search that the authorities discovered that the applicant was residing
in Canada without
status.
[3]
A
removal order against the applicant was made on October 9, 2009, but
its enforcement was delayed by the effect of the statute following his
application for a pre‑removal risk assessment submitted the same day. On
February 3, 2010, the officer responsible for the assessment found
that the applicant would not face any undue risk if he returned to
Saint Vincent. This finding was not the subject of an application for
judicial review.
[4]
On
December 3, 2009, Mr. Osborn Anthony, the husband of the
applicant’s niece, was the victim of an armed attack and was shot a number of
times; he sustained serious injuries and was rendered paraplegic. The applicant
now acts as an assistant for his niece’s husband to, inter alia,
put him in his wheelchair and support him when he leaves his home, which is not
adapted for his lack of mobility.
[5]
The
circumstances regarding the husband of the applicant’s niece were discussed at
the interview on February 8, 2010, which had been arranged to give
the applicant the pre‑removal risk assessment findings. Officer
Y.L. Cheung informed the applicant at that time that the circumstances
surrounding the health of his niece’s husband did not justify an administrative
stay of his removal for an indefinite period. Nonetheless, the officer granted
the applicant a two‑month stay to enable him and his niece’s husband to
prepare for his departure and to find alternate solutions. The officer summoned
the applicant to another interview scheduled for March 16, 2010.
[6]
On
February 24, 2010, the applicant submitted an application for
permanent residence in Canada under section 25 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act),
which permits the Minister to grant this status on an exceptional basis “if the
Minister is of the opinion that it is justified by humanitarian and
compassionate considerations . . . taking into account the best
interests of a child directly affected, or by public policy considerations.”
[7]
The
application for permanent residence in Canada under
section 25 of the Act was primarily based on the fact that the husband of
the applicant’s niece requires assistance. In the application, the applicant
maintained that his sudden departure from Canada would have a
serious and disproportionate impact on his niece’s husband. The Minister’s
review of this application is evidently still pending.
[8]
On
March 11, 2010, the applicant also submitted a written application to
the removal officer for an administrative stay. The purpose of his application
was to obtain a stay for the time needed to review his application for
permanent residence under section 25 of the Act. The application for an
administrative stay was based on the following as set out in the written
representations of counsel for the applicant, which were provided to the
removal officer:
[translation]
Today, the real basis on which the
applicant relies is the fact that a Canadian citizen is going through a
difficult situation where the only viable alternative is the presence in Canada of a foreign national who
almost certainly will be deported. If that happens, the inconvenience, impact
and difficulties experienced will be immediate and obvious. Unfortunately,
there does not really seem to be any other solution to Mr. Osborn’s problem.
We submit that the applicant’s sudden
departure from Canada will have a serious and
disproportionate impact on the life of Mr. Osborn Anthony, who is a
Canadian citizen.
[9]
The
scheduled meeting with the officer took place on March 16, 2010. At
that time, the applicant was verbally informed about the refusal to grant the
administrative stay. He was summoned to another interview scheduled for
April 8, thus giving him an additional de facto stay of a few
weeks.
[10]
On
the same day, March 16, 2010, following a telephone application by applicant’s
counsel, the removal officer again refused a new verbal application for a stay
on the basis that he would not grant a stay for an indefinite period. However,
the officer indicated to applicant’s counsel that he would consent to an
additional two-week stay if an application were sent to him in writing.
[11]
The
applicant received written notice that the stay had been refused but instead of
submitting a new stay application for an additional period of two weeks, the
applicant asked the officer to set out the reasons for the refusal that were
given on March 16. The officer sent the following reasons on
March 24, 2010:
[translation]
The decision to refuse your application
was based on the finding that the basis of your application (that a Canadian
citizen is going through a difficult situation) does not justify an
administrative stay. In addition, we would like to state that the Canadian’s
situation was already taken into consideration at the interview on
February 8, 2010.
[12]
On
April 8, 2010, the officer met with the applicant and gave him a
notice indicating that he must leave Canada on
April 25, 2010. At the meeting, the applicant and his counsel stated
that they had not received the written reasons of March 24, 2010. The
officer therefore gave them a copy of his reasons at that meeting.
[13]
The
applicant now seeks judicial review of the March 16, 2010, decision
whose reasons were sent to him on March 24, 2010, and given to him
personally on April 8, 2010; an application for leave under
section 72 of the Act was filed on April 12, 2010, along with the
stay motion that is before me.
Positions of the parties
[14]
In
his written representations in support of the stay motion, the applicant sets
out two grounds: (a) the officer erred in law by finding that the
difficulties of a third party in Canada cannot be the basis for an
administrative stay and (b) the decision does not provide adequate reasons
because there is no correlation between the evidence in the record and the
decision.
[15]
The
applicant does not allege any harm concerning him personally but relies on the
harm that his niece’s husband would suffer if he returned to Saint Vincent.
[16]
The
respondent maintains that the application for leave and judicial review is out
of time because the decision refusing the stay on March 16, 2010, was
sent to counsel for the applicant the same day. In these circumstances, the application
for leave and judicial review is statute barred and therefore cannot serve as
the basis of the stay motion. The respondent also submits that the stay motion
was submitted late.
[17]
As
for the merits of the stay motion, the respondent maintains that the removal
officer did take into account the information submitted to him about the
husband of the applicant’s niece but decided on March 16, 2010, that
the situation did not merit another stay in addition to those already granted.
He did not refuse to consider the impact of the removal on the husband of the
applicant’s niece and explained at length the reasons for refusing the stay to
applicant’s counsel in a telephone conversation on March 16, 2010; he
then set out the reasons briefly in writing on March 24, 2010.
[18]
The
respondent notes that a removal officer’s discretion is very limited and is
concerned mainly with problems regarding travel arrangements or an applicant’s
state of health that does not permit him or her to travel. It is not the role
of removal officers to consider humanitarian and compassionate circumstances
before ordering a removal, or to substitute themselves for the officers who
will decide the application for permanent residence under section 25 of
the Act.
[19]
In
this case, the respondent submits that the removal officer properly exercised
his discretion in accordance with the limits of his jurisdiction. The
respondent adds that assisting an ill relative does not necessarily constitute
irreparable harm.
[20]
Last,
the respondent notes that the applicant has been residing in Canada illegally
for a number of years and has been living all this time with his niece and her
husband, with full knowledge of the illegality. These facts must be taken into
consideration in analyzing the balance of convenience.
Analysis
[21]
In
light of my findings based on the following analysis, it will not be necessary
for me to rule on the issues raised by the respondent concerning time limits or
delays.
[22]
According
to Baron v. Canada (Minister of Public Safety and Emergency
Preparedness), 2009 FCA 81 (Baron) at paragraph 67,
when the Court is dealing with a motion to stay a removal in the context of an
application for judicial review of a removal officer’s decision refusing an administrative
stay, the judge should have in mind, first of all, that the discretion to defer
the removal of a person subject to an enforceable removal order is limited and,
second, that the standard of review of an officer’s decision is that of
reasonableness. Since the stay motion is, in effect, seeking a final decision
on the impugned order, applicants must be able to put forward quite a strong
case to justify their motion.
[23]
The
Baron decision refers to Wang v. Canada (Minister of
Citizenship and Immigration), [2001] 3 F.C. 682, [2001]
F.C.J. No. 295 (QL) (Wang). In Wang,
Justice Pelletier wrote the following at paragraphs 48 and 52 (not
underlined in the original):
It
has been recognized that there is a discretion to defer removal though the
boundaries of that discretion have not been defined. The grant of discretion is
found in the same section which imposes the obligation to execute removal
orders, a juxtaposition which is not insignificant. At its widest, the
discretion to defer should logically be exercised only in circumstances where
the process to which deferral is accorded could result in the removal order
becoming unenforceable or ineffective. Deferral for the mere sake of delay is
not in accordance with the imperatives of the Act. One instance of a
policy which respects the discretion to defer while limiting its application to
cases which are consistent with the policy of the Act, is that deferral
should be reserved for those applications or processes where the failure to
defer will expose the applicant to the risk of death, extreme sanction or
inhumane treatment in circumstances and where deferral might result in the
order becoming inoperative. The consequences of removal in those
circumstances cannot be made good by re-admitting the person to the country
following the successful conclusion of their pending application. Family
hardship cases such as this one are unfortunate but they can be remedied by
readmission.
. . .
Turning
to the issue in the underlying judicial review, the Removal Officer's
refusal to defer the removal pending the disposition of the H & C
application, I find no serious issue with regard to the Removal Officer's
conduct. As set out above, a pending H & C application on grounds of family
separation is not itself grounds for delaying a removal. To treat it as such
would be to create a statutory stay which Parliament declined to enact. . . .
The Federal Court of Appeal
approved this approach in Baron at paragraph 51.
[24]
Thus,
the discretion to stay a removal should normally be reserved for exceptional
circumstances such as where the applicant’s personal safety would be at risk.
Where a stay of removal is sought for the period required to permit the
Minister to determine an H & C application under section 25
of the Act, the stay should only be granted where the application under
section 25 of the Act is itself based on a risk to the applicant’s personal
safety or where the same type of exceptional considerations exist.
[25]
In
this case, there is no consideration related to the applicant’s person that justifies
granting the stay of removal. In fact, the applicant will not face any
foreseeable risk to his personal safety should he return to Saint Vincent.
[26]
On
the other hand, the spouse of the applicant’s niece will lose the assistance
the applicant gives him to facilitate his mobility. Is that one of the
exceptional circumstances contemplated in the Wang and Baron
decisions that would permit a stay of the applicant’s removal notwithstanding
that his personal safety is not at issue? Like the removal officer, I am of the
view that the particular facts of this case do not constitute such exceptional
circumstances.
[27]
We
note that the personal situation of the husband of the applicant’s niece is
certainly tragic, but the applicant’s presence by his side is not the only
solution available to him. I note that the applicant did not submit a report
from the social services or health care services in question stating that they will
be unable to provide services to facilitate the mobility of the niece’s husband
once the applicant is removed to his country, or a report regarding the assistance
that may be available under An Act respecting assistance for victims of
crime, R.S.Q., c. A‑13.2 or the Crime Victims Compensation
Act, R.S.Q., c. I-6. The applicant has the burden of establishing the basis
for his stay motion, and we would have expected detailed reports (or, at the
very least, detailed affidavits) from social services and health care services as
to the lack of alternatives in this particular case.
[28]
The
applicant cites the decisions in Samuels v. Canada (Minister of Citizenship
and Immigration), 2003 FC 1349, [2003] F.C.J. No. 1715 (QL);
Kahn v. Canada (Minister of Public Safety and Emergency Preparedness),
2005 FC 1107, [2005] F.C.J. No. 1365 (QL); and Richards v.
Minister of Citizenship and Immigration, (1999) IMM‑2720‑99 to
establish the principle that this Court may stay a removal order where the
person subject to the order is assisting an ill or disabled family member.
However, the respondent properly notes that Justice Mandamin in Gallardo
v. Canada (Minister of
Public Safety and Emergency Preparedness), 2007 FC 938
refused to grant a stay in similar circumstances. All these decisions, however,
precede the Federal Court of Appeal decision in Baron and
must now be analyzed in light of that decision. Moreover, those decisions
involved members of the immediate family of the applicants in question, not
third parties or members of the extended family.
[29]
We
also note that the applicant will not suffer irreparable harm if he returns to Saint Vincent.
[30]
Last,
I agree with respondent’s counsel that, in analyzing the balance of
convenience, one cannot ignore the fact that the applicant resided without
status for a number of years in Canada with the complicity of
his niece and her husband. We are not dealing here with a refugee claimant who
properly followed all the steps set out in the Act in order for the Canadian
authorities to move his file forward. The applicant stayed in Canada illegally
and was never subject to immigration reviews until he was arrested in a police
search. On a stay motion, the Court must take into consideration the circumstances
of illegality and contempt for the Canadian legislative and regulatory
framework governing immigration. In these circumstances, the applicant had a
particularly heavy burden in the balance of convenience analysis, a burden that
he has not successfully overcome.
[31]
In
conclusion, the applicant does not meet any of the criteria to obtain a stay.
The motion for a stay of execution of the removal is therefore dismissed.
“Robert
M. Mainville”
Mary
Jo Egan, LLB
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