Date: 20090528
Docket: IMM-5258-08
Citation: 2009 FC 552
Ottawa, Ontario, this 28th day of May
2009
Present: The Honourable Orville
Frenette
BETWEEN:
Milena
URBANCZYK
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY
PREPAREDNESS
Respondent
REASONS FOR ORDER
AND ORDER
[1]
This
is an application for leave to commence an application for judicial review
under subsection 72(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (the “Act”) against a decision dated November 25, 2008 of
a Deferral Officer or Inland Enforcement Officer’s refusal of a deferral from
an order of removal to Poland scheduled for December 5, 2008. The
undersigned granted a stay of execution against the above order on December 5,
2008, pending the determination for leave and for judicial review of the
refusal of deferral of the removal order.
[2]
The
applicant alleges the following issues:
1.
She
is an innocent victim because her first humanitarian and compassionate (“H&C”)
application was refused because of her partner’s criminal charge in the United
States,
which is alleged to have occurred before she met him.
2.
If
she is sent back to Poland, this will separate her from her partner for
several years before the agency processes her H&C application.
3.
She
suffers from a major depression, controlled by medication but these last events
accentuated her anxiety and stress.
[3]
The
respondent answers:
1.
The
separation of a couple is a usual result of a removal.
2.
Anxiety
and depression are usual consequences of deportation. There is no evidence that
medical services and medication are not available in Poland to treat
that illness (Palka v. Minister of Public Safety and Emergency Preparedness,
2008 FCA 165).
3.
The
existence of an outstanding H&C application alone is not in itself,
sufficient support to a stay of deportation order (Simoes v. Minister of
Citizenship and Immigration (2000), 187 F.T.R. 219, at paragraph 12; Barrera
v. Minister of Citizenship and Immigration, 2003 FCT 779).
[4]
I
based my decision to stay on the “serious issues” test because: “If one
examines individually these issues, he or she could conclude they do not meet
the test of “seriousness” but cumulatively I believe they do meet the
criteria.”
The Test for Leave for
Judicial Review
[5]
Subsection
72(1) of the Act provides that judicial review to the Federal Court commences
by making an application to the Federal Court and if leave is granted, the
decision is reviewed in accordance with subsection 18.1(4) of the Federal
Courts Act, R.S.C. 1985, c. F-7.
[6]
For
leave to be granted, the test or only consideration is whether there is “a
fairly arguable case and a serious question to be determined” (Bains v.
Minister of Employment and Immigration (1990), 47 Admin. L.R. 317, 109 N.R.
239, paragraph 1 (F.C.A.)).
[7]
In
Wu et al. v. Minister of Employment and Immigration (1989), 7 Imm. L.R.
(2d) 81 (F.C.T.D.), Madam Justice Barbara Reed wrote:
On leave to
commence proceedings application the task is not to determine, as between the
parties, which arguments will win on the merits after a hearing. The task is to
determine whether the applicants have a fairly arguable case, a serious
question to be determined. If so leave should be granted and the applicants
allowed to have their argument heard.
In Virk v. Minister of Employment and
Immigration (1991), 13 Imm. L.R. (2d) 119 (F.C.T.D.), “arguable case” has
been defined as one that has a chance of success on judicial review.
Mootness
[8]
The
issue of mootness might have arisen in this case following the Federal Court of
Appeal decision in Baron v. Minister of Citizenship and Immigration,
2009 FCA 81, released on March 13, 2009 i.e. after my stay decision
of December 5, 2008.
[9]
In
Baron, Justice Eleanor Dawson had dismissed the applicant’s judicial
review application challenging a refusal to defer removal pending an
outstanding H&C application because the removal date had passed and
therefore the matter became moot.
[10]
Although
the Court of Appeal concluded that the matter was not moot because there still
was live controversy between the parties, i.e. the H&C application,
this did not prevent the removal of the appellant.
[11]
The
applicant submits that in the instant case, the matter is not moot for the same
reason. The respondent opines that what is the issue here was an either or
proposition and since the 60-day extension sought has expired, the matter is
moot, even if there is an outstanding H&C application. The removal should
have proceeded.
[12]
I
do not believe necessary to address the issue of mootness because Baron
settles the matter of the removal deciding that in similar circumstances as the
present one, removal on the prescribed date, the order was enforceable.
[13]
The
applicant can pursue her H&C application outside Canada.
[14]
In
conclusion, leave for judicial review will be refused for the same reasons as
enunciated in Baron, supra. See also Chetaru v. Minister of
Public Safety and Emergency Preparedness, 2009 FC 436.
ORDER
THIS COURT
ORDERS THAT:
The
application for leave and for judicial review of the Deferral Officer or Inland
Enforcement Officer’s decision of November 25, 2008 is refused.
“Orville
Frenette”
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