Date: 20120704
Docket: IMM-6264-12
Citation: 2012 FC 845
Ottawa, Ontario, July 4, 2012
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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HARBHAJAN SINGH
SURINDER KAUR
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Applicants
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and
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THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
AND THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondents
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REASONS FOR ORDER AND
ORDER
[1]
[12] … The
Applicants seem to be of the view that if they continue to add documents to the
record, the credibility findings of the Refugee Board are somehow going to be
"reversed" or "forgotten"…
(As sated by Justice Marc Nadon in Hussain v Canada
(Minister of Citizenship and Immigration), [2000] FCJ No 751
(QL/Lexis)).
[2]
It
is important to specify that a motion for a stay, if based on a narrative, that
the Refugee Protection of the Immigration and Refugee Board found not to be
credible then it cannot serve to support an alleged serious issue and/or
irreparable harm for a stay of deportation as stated in Padda v Canada
(Minister of Citizenship and Immigration), 2009 FC 738.
[3]
On
June 28, 2012, the Applicants filed a motion before the Court to obtain a stay
of execution of the removal order scheduled for July 4, 2012.
[4]
As
the background of this case stands uncontradicted, it is reproduced below:
STATEMENT OF FACTS
15. The Applicants are citizens of India.
16. The Applicants first entered Canada
on January 2, 2006 and claimed asylum on January 26, 200610.
17. On November 18, 2008 the
Applicants’ protection claim was rejected by the Refugee Protection Division
(“RPD”) of the Immigration and Refugee Board (“IRB”). On March 25, 2009,
the Applicants’ ALJR against that decision was denied by Justice Martineau in file IMM-5456-08.
18. On April 25, 2012, the
Applicants’ both H&C and Pre-Removal Risk Assessment (“PRRA”) were denied
by Citizenship and Immigration (CIC) Officer
D. Fournier (the “H&C
Officer”)11.
19. Allegedly “around” June 5,
2012, the Applicants received the disputed decision. However, they waited
until June 12, 2012, to consult with their counsel.
20. On June 18, 2012, counsel sent
a letter to the Removals Officer Henry Kwan to request a deferral of the
Applicant[s’] removal to India, which correspondence to the Canada [Border]
Services Agency (CBSA) was accompanied by a June 11, 201212
letter from Dr Juan Carlos L. Chirgwin to inform the Officer that Mrs. Kaur is unfit to travel.
21. On June 19, 2012, the
Applicants’ counsel requested again a deferral of the Applicants’ removal. The
Removals Officer refused to grant a deferral without first consulting with a
CIC [Citizenship and Immigration of Canada] doctor13.
22. On June 19, 2012, the Removals
Officer sent a convocation letter to inform the Applicants that they would be
removed from Canada on July 4, 2012, at 20:15 at P.E. Trudeau Airport.
23. On June 22, 2012, the ALJR
is filed against the H&C decision rendered on April 25, 2012.
24. On June 25, 2012, counsel for
the Applicants sent a follow-up letter to the Enforcement Officer. Enclosed
with this letter were a second letter dated June 22, 2012, from Dr
Chirgwin14 and another letter also dated June 22, 2012 from M. Woodbury, psychologist, to inform
CBSA that Ms. Kaur is unfit to travel on a short-term basis15.
25. On June 27, 2012, the
Enforcement Officer sent a letter to inform counsel that, after obtaining the
medical opinion of CIC Medical Officers, there were insufficient grounds to
grant a stay of removal for Ms. Kaur16.
10 PRRA decision, p. 214 of the
Applicants’ Record.
11 H&C decision of April 25
2012, pp. 212 and 217 of the Applicants’ Record.
12 June 11, 2012 Letter of Dr. Juan Carlos L. Chirgwin, pp. 77 to 79 of Applicants’ Record.
13 See Exhibit “B, en liasse” to
the Affidavit of Dominique Toillon.
14 June 11, 2012 Letter of Dr. Juan Carlos L. Chirgwin, pp. 81 to 83 of Applicants’ Record.
15 June 11, 2012 Letter of M. David Woodbury, p. 84 of Applicants’ Record.
16 June 27, 2012 Letter from
Enforcement Officer, pp. 85 of Applicants’ Record.
[Emphasis
added].
[5]
As
shown above, in respect of every level of decisions taken and in each
jurisdiction, the Applicants were denied each and every application in the past
by every preceding decision-maker.
Additional Information
[6]
It
is important to note that, in regard to risk, the Applicants are relying most
heavily on evidence of several years ago in regard to the jurisprudence and
matters related thereto, rather than the situation as it currently exists in
the their country of origin as is related in the Sidhu v Canada
(Minister of Citizenship and Immigration), 2004 FC 39 decision.
[7]
In
addition, this stay application is in respect of the Humanitarian and
Compassionate [H&C] determination decision and not the Pre-Removal Risk
Assessment decision.
[8]
Also,
the Court notes that new medical evidence presented by the Applicants is
submitted subsequent to having had their H&C matter determined; this
evidence was not before the H&C officer in question. In addition, the Court
recalls that the Applicants have been in Canada since January 2006 to bring any
significant evidence to light.
[9]
The
Court duly notes that a medical escort is to be provided if needed for the
Applicants for their return flight, although medical evidence demonstrates that
it is not necessary for medical care to be provided on board the flight which
the Applicants are to take on their return to their country of origin due to
the needed medication being taken. Nevertheless, a medical escort will be
provided, if needed.
[10]
It
was noted that a very large number of passengers have the same medical
histories as the Applicants; and, they travel routinely with these medical
conditions controlled with appropriate medication prescribed. (Examples given
during the hearing of Canadian citizens who travel in exactly the same
conditions).
N.B. Also, it was
specified that India now has both the medication and medical services to treat
the Applicants.
[11]
Due
to all of the above reasons, the tripartite conjunctive Toth v Canada (Minister
of Employment and Immigration) (1988), 86 NR 302 (FCA) decision test has not
been satisfied in any one of the three criteria.
[12]
The
application of the Applicants in respect of the stay of removal is denied.
ORDER
THIS COURT
ORDERS that
1) the Style of
Cause be amended to include the Minister of Public Safety and Emergency
Preparedness as a Respondent along with the Minister of Citizenship and
Immigration;
2) the
application for a stay of removal of the Applicants be denied.
“Michel
M.J. Shore”
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