Date:
20120701
Docket:
IMM-6519-12
Citation:
2012 FC 840
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, July 1, 2012
PRESENT:
The Honourable Mr. Justice Shore
BETWEEN:
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AMRITPAL SINGH ARORA
RAVINDER KAUR ARORA
ONKAR PREET AMR
ARORA
TARANDEEP KAUR ARORA
HARLEEN KAUR ARORA
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Applicants
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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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REASONS
FOR ORDER AND ORDER
[1]
The
applicants (two parents and three children) are seeking to be heard by the
Court today, July 1, 2012, Canada Day, on an urgent basis.
[2]
Since
May 1, 2012, the applicants were aware that they had to leave by the end of
June 2012. Since June 4, 2012, the applicants had a specific date
confirming all of this, namely the date of June 30, 2012, for the removal. The
applicants knew the date of the principal female applicant’s surgery, July 5,
2012, since at least June 11, 2012.
[3]
The
filing of the motion for a stay at the last minute, the last day of their expected
stay in Canada before their departure scheduled for that same day, can only
serve as a strategy to put pressure on the Court and the other branches of the
Canadian government. This is why the Court is faced with a case presented at
the last minute, which will not be heard by this Court on its merits (also given
the attached detailed history of past judicial proceedings).
[4]
Justice
Barnes of the Federal Court wrote the following:
[6] I dismissed this motion because of its
lateness and because of the obvious prejudice to the Respondent if the matter
was heard on the merits. An applicant should not enjoy a strategic advantage by
bringing last-minute stay motions before the Court. . . .
Shi v M.C.I., 2007 FC 534
See also Matadeen v M.C.I., IMM-3164-00, June
22, 2000. (Pinard J.)
[5]
The
following is a summary of the judicial proceedings by the Canadian government’s
Canada Border Services Agency with details on the applicants based on
uncontradicted history.
[translation]
Canada Border
Agence des services
Services Agency frontaliers du Canada
Protected
Case
Summary
LAST
NAME, Given name: Arora Amritpal Singh
Date
of birth: 08-02-1974
Country
of birth: India
Country
of citizenship: India
FOSS
ID: 5263-7637
LAST
NAME, Given name: Arora Amritpal Singh (wife)
Date
of birth: 08-02-1974
Country
of birth: India
Country
of citizenship: India
FOSS
ID: 5263-7637
LAST
NAME, Given name: Arora Tarandeep Kaur (daughter)
Date
of birth: 15-04-1997
Country
of birth: India
Country
of citizenship: India
FOSS
ID: 4753-8580
LAST
NAME, Given name: Arora Onkar Preet Amritpal (son)
Date
of birth: 30-05-2004
Country
of birth: India
Country
of citizenship: India
FOSS
ID: 5627-0330
LAST
NAME, Given name: Arora Harleen Kaur (daughter)
Date
of birth: 08-08-1998
Country
of birth: India
Country
of citizenship: India
FOSS
ID: 4753-8581
26-02-2006
Admitted
at Saint Bernard de Lacolle as a visitor (tourist) for a period ending on 25-08-2006.
02-05-2006
Filed
refugee claim at CIC Montréal. Issuance of conditional removal orders.
Canada 1
Canada Border
Agence des services
Services Agency frontaliers du Canada
19-12-2008
The
IRB-Refugee Protection Division decided that it did not consider the refugee
claimants Convention refugees or persons in need of protection. As a result,
the refugee claim was rejected.
06-05-2009
The
Federal Court dismissed the application for leave and judicial review in
respect of the decision by the IRB-RPD.
24-08-2009
Family
filed, with CIC, an application for permanent residence in Canada on humanitarian
and compassionate grounds.
02-12-2009
Family
filed an application under the pre-removal risk assessment (PRRA) program.
12-01-2011
During
an interview at the Canada Border Services Agency offices, the family received
two negative decisions (refusals) regarding the pre-removal risk assessment
application and the application for permanent residence in Canada on
humanitarian and compassionate grounds.
During
the interview, no departure date was served on the family because the Canada
Border Services Agency was awaiting the travel documents (for the children)
sought from the Indian representative in Ottawa.
30-03-2011
The
family filed, with CIC, a new application for permanent residence in Canada.
04-05-2011
The
Federal Court dismissed the applications for leave and judicial review in
respect of the PRRA decisions and the application for permanent residence in
Canada.
26-03-2012
Family
met at the Canada Border Services Agency offices regarding the documents to be
completed for obtaining the travel documents for the three children from the
Indian representative in Ottawa.
01-05-2012
After
receiving travel documents issued by the Indian representative in Canada, the
family met with an enforcement officer. During that interview, the family was
informed that the removal order that they were subject to had to be enforced,
more specifically that they had to leave Canada for India.
Canada 2
Agence des services Canada Border
frontaliers du Canada Services Agency
Following
the interview, the enforcement officer agreed to schedule the departure date
for June 28, 2012, on the sole basis of allowing the children to
complete the school year ending on 22‑06-2012 (medical reasons assessed
and rejected).
04-06-2012
Mr.
Arora, accompanied by Robert Fragasso, appeared for an interview at the CBSA
offices. During the interview, the subject provided plane tickets for the
entire family, departing from Canada for India on 30-06-2012.
Furthermore,
he submitted a document on his wife’s health and sought an administrative
deferral of several months on the removal. Mr. Arora and lawyer informed of
refusal and reasons.
26-06-2012
Mr.
Arora appeared in an interview at the CBSA offices, accompanied by Maria
Esposito, counsel.
Regarding
his wife’s medical situation, Mr. Aorora submitted a letter dated June 15,
2012, written by Dr. Olivier, the physician treating his wife. The officer acknowledged
the letter and informed the subject of his refusal to grant an administrative
deferral of the removal for the reasons raised in the letter.
During
the interview, the subject stated that the Air India carrier was on strike for
an indeterminate period and that, as a result, they could not leave Canada for
India on 30-06-2012 as planned. Subject advised to report to our agency on 28-06-2012
at 2:30pm with plane tickets for a departure from Canada for India by
05-07-2012 at the latest.
28-06-2012
Subject
appeared; not in possession of plane tickets as required from the interview on 26‑06-2012.
Subject informed that his departure and that of his family was scheduled for
01-07-2012. Subject raised organizational barriers to their departure from
Canada on that date. Subject taken into custody.
29-06-2012
Ms.
Arora appeared at our agency accompanied by her brother. Ai The officer met with
her and issued a notice to appear with her children at the Montréal Trudeau airport
on 01-07-2012 to leave Canada for India.
The
officer received a telephone call from Dr. Olivier, the physician treating Ms. Arora.
The physician asked the officer to defer the removal to allow Ms. Arora to
undergo surgery on 05‑07‑2012 and subsequently remain under observation
for at least two months.
The
officer’s supervisor received a call from Dr. Olivier, who was interceding in
order to obtain a deferral.
Canada 3
Fax from Dr. Olivier received on 29-06-2012 (2:41pm)
at the CBSA offices, the officer acknowledged the document. Conclusion: the
departure date scheduled for 01-07-2012 was maintained.
[6]
Given
the case history, the Court agrees with the respondent, who raises the
following:
No substantive serious or irreparable harm issues
Furthermore, even if the late filing of the proceedings
is, in itself, sufficient to dismiss this application, the respondent still wishes
to specify that, on the merits, the applicants do not raise any serious or
irreparable harm issues.
Thus, the applicants have not submitted any evidence
to the removal officer specifying that: the principal female applicant cannot
travel, that she must absolutely undergo the operation on July 5, 2012, or that
she cannot be operated on in India. In addition, the removal officer received confirmation
from Dr. Olivier, the principal female applicant’s neurosurgeon, that she can fly
and that the operation scheduled for July 5 could be done in India. That
information was reconfirmed by Dr. Olivier to Supervisor Léon Kabongo
Katalay. Once those elements were established, there was no question as to the
reasonableness of the removal officer’s decision, considering his obligations
under section 48 of the IRPA.
Furthermore, the principal female applicant has been
living with this medical condition (epilepsy) since she was 19 years old, that
is, even before coming to Canada. Her situation therefore did not prevent her from
moving from her country of origin to Canada, and there is no reason to believe
that she cannot do the reverse trip. [If the female applicant takes her
medications as prescribed like she did during her stay in Canada, and if she
follows her physician’s advice regarding her case like in the first argument
specified by her medical team in respect of her, she is able to make the trip
and that is why an additional deferral of the stay was not granted by the
officer in respect of her. The initial medical expertise within the evidence specifies
that that kind of surgery can be done in India. Over time,] she herself also decided
to place herself in this precarious situation by choosing to settle in Canada under
unfounded pretexts (the applicants’ refugee claim was found not credible).
Finally, the respondent questions the reliability of
the e-mail sent by Ms. Barrière, which contains an e-mail from Dr. André
Olivier stating that the principal female applicant is at risk when flying. First,
the respondent notes that the language used was vague and ambiguous: there is
no mention as to whether the risk is high or low. Second, the respondent also points
out Dr. Olivier’s previous statements to Officer Primeau and Officer Katalay
that the female applicant could travel. Finally, the [last] letter by Dr.
Olivier was not produced in a context that ensures its reliability: it was not
done under oath, is not even part of an affidavit, the e-mail address of a
third party who calls into question the letter at issue.
ORDER
For all of these
reasons, the motion for a stay will not be heard on the merits in order to
ensure respect for the justice system, which, on the facts, should not be taken
by surprise or caught unawares by invalidated exhibits.
“Michel
M.J. Shore”
Certified
true translation
Janine
Anderson, Translator
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