Docket: IMM-967-12
Citation: 2012 FC 139
Ottawa, Ontario, February 2,
2012
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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ANGELITO TAYAG
PERCIDITA VISPERAS
KRISTOFFER FRANCIS TAYAG
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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
human condition is the very substance of the narrative of each court decision.
The unfortunate circumstances of this matter stem from a narrative of a couple
and their son. The family came to Canada on visitors’ visas four and a half
years ago; and attempted to remain in Canada by initiating different
procedures, on several occasions, that would allow a regularization of status,
although a legal foundation for a regularization of status was ruled not to
exist in any proceeding which the family had, thus far, undertaken.
[2]
As
unfortunate as the situation appears, the matter, assessed on its own merits
for the purpose of a stay of removal, lacks legal foundation.
[3]
If
the Applicants’ application for a stay of removal of the Enforcement Officer’s
decision would be granted, the matter, bearing no exceptional circumstances as
interpreted per the jurisprudence in such circumstances, would simply serve as
a potential precedent for individuals who come to Canada as visitors without
application from abroad for permanent residence status.
[4]
This
matter, in actual fact, bears no exceptional circumstances, other than that of
lives (with acknowledged, recognized and understood travails and successes)
becoming accustomed to life in Canada with all it holds (potential
employment based on a successful work history, for one member of the couple
health services, continued education for the son of the couple and a desire for
a continuation of family, social and communal ties, established through the
passage of time); and, thus, expectation of entitlement to permanent
establishment sets itself up for a fall; in that, from a legal perspective,
permanent establishment cannot be expected to gain legitimacy, when it has none.
[5]
Thus,
the conjunctive tripartite Toth decision (Toth v. Canada (Minister of Employment
and Immigration) (FCA),
[1988] 86 NR 302) test criteria have not been met for this family from the Philippines.
[6]
Neither
the positive employment potential nor the family, communal and social ties, in
addition to the need for health services and continued education for the son of
the couple, can change the overall legal perspective to satisfy the Toth
decision criteria.
[7]
It is not
for a Court that must interpret legislation and apply pertinent jurisprudence
to grant a stay of removal when judicially the narrative of the matter does not
allow for such judicial interpretation (two deferrals of removal had been
previously granted to assist the family in its transitional changes by the
relevant enforcement authorities). Only executive ministerial discretion can
grant such an exemption from application from abroad for permanent residence.
[8]
In
conclusion, the application for a stay of removal is denied.
ORDER
THEREFORE,
THE COURT ORDERS that the application for a stay of removal be
denied. No question of general importance is certified.
“Michel M.J. Shore”
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