Date: 20090814
Docket: IMM-4098-09
Citation: 2009 FC 830
Ottawa, Ontario, August 14,
2009
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
GUAN,
YUEYOU
Applicant(s)
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
[59] … Reviewing courts cannot substitute their own
appreciation of the appropriate solution, but must rather determine if the
outcome falls within “a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir, at para.
47). There might be more than one reasonable outcome. However, as
long as the process and the outcome fit comfortably with the principles of
justification, transparency and intelligibility, it is not open to a reviewing
court to substitute its own view of a preferable outcome.
(Canada (Minister of Citizenship and Immigration
v. Khosa, 2009 SCC 12).
[67] While I agree
entirely with my colleague’s approach to the “serious issue” prong of the
tripartite test in the context of a motion to stay a removal order, I would add
the following. In determining whether a serious issue exists so as to warrant
the granting of a stay of removal, the Judge hearing the motion should clearly
have in mind, first of all, that the discretion to defer the removal of a
person subject to an enforceable removal order is limited, as explained in Simoes,
supra, and, particularly, in Wang, supra. Second, the Judge should
also have in mind that the standard of review of an enforcement officer’s decision is
that of reasonableness. Thus, for an applicant to succeed on a judicial review
challenge of such a decision, he or she must be able to put forward quite a
strong case. In my view, the appellants herein clearly did not have such a case
to put forward.
(Baron
v. Canada (Minister of Public Safety and Emergency
Preparedness), 2009 FCA
81.
[2]
Madam Yueyou
Guan, the Applicant has filed a motion for a stay of her removal scheduled for
August 15, 2009.
[3]
The
Court has received
the parties’ respective documents, has read the contents, written pleadings and
has heard counsel for the parties by teleconference.
[4]
The assessment
of this matter by the Court is fully based on the requirements of the tri-partite
Toth v. Canada (Minister of Employment and
Immigration)
(1988), 86
N.R. 302 (F.C.A.) test.
[5]
The Court is not
satisfied that the tripartite Toth test is met by the Applicant in any
one of the three prongs.
[6]
The
Applicant has not fulfilled the necessities of the “test” on the basis of the
Applicant’s pending in-Canada spousal sponsorship application nor on the fact
that she has two sons with temporary status in Canada.
[7]
The
Applicant has no argument of contention in respect of the Pre-Removal Risk
Assessment (PRRA). The PRRA reasons in the Applicant’s regard demonstrate that
the entire evidence
(both the objective, country evidence as well as the subjective, personal
specific evidence of Madam Guan) was considered reasonably without any risk to
the Applicant; the officer’s inherent logic is borne out in the reasons for the
decision. Neither irreparable harm, nor a balance of convenience, favour
the Applicant in respect of the pending spousal sponsorship application nor due
to the Applicant’s sons’ temporary status in Canada subsequent to their studies herein.
[8]
Also,
no serious issue has been pointed out by counsel for the Applicant in
respect of the health of the Applicant that cannot be treated in her country of
origin. The separation from the Applicant’s grown sons, jurisprudentially, does
not change the situation (Baron, above).
[9]
Thus,
the conjunctive requirements of the Toth test have not been met.
JUDGMENT
THEREFORE, THIS COURT ORDERS that
the Motion for a stay of the removal be dismissed.
“Michel M.J. Shore”
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