Docket: IMM-6714-11
Citation: 2011 FC 1138
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, October
6, 2011
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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DIEFF MONDELUS
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Applicant
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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 JUDGMENT AND
JUDGMENT
I. Preliminary
[1]
Since
his arrival in 2008 until October 4, 2011, the applicant has taken advantage of
the many opportunities afforded to individuals under Canadian immigration law
to avoid a return to France. It is now time to
proceed with the removal.
[2]
Parliament’s
intent calls for an interpretation that is consistent with that intent with
regard to persons who have exhausted all possible avenues for staying in Canada. As
specified in Baron v. Canada
(Minister of Public Safety and Emergency Preparedness),
2009 FCA 81, [2010] 2 F.C.R. 311, by the Federal Court of Appeal:
[51] ...After
a careful and thorough review of the relevant statutory provisions and
jurisprudence pertaining thereto, Mr. Justice Pelletier circumscribed the
boundaries of an enforcement officer’s discretion to defer. In reasons which I
find myself unable to improve, he made the following points:
– There are a
range of factors that can validly influence the timing of removal on even the
narrowest reading of section 48, such as those factors related to making
effective travel arrangements and other factors affected by those arrangements,
such as children’s school years and pending births or deaths.
– The Minister
is bound by law to execute a valid removal order and, consequently, any
deferral policy should reflect this imperative of the Act. In considering
the duty to comply with section 48, the availability of an alternate remedy,
such as a right to return, should be given great consideration because it is a
remedy other than failing to comply with a positive statutory obligation. In
instances where applicants are successful in their H&C applications, they
can be made whole by readmission.
– In order to
respect the policy of the Act which imposes a positive obligation on the
Minister, while allowing for some discretion with respect to the timing of a
removal, deferral should be reserved for those applications where failure to
defer will expose the applicant to the risk of death, extreme sanction or
inhumane treatment. With respect to H&C applications, absent special
considerations, such applications will not justify deferral unless based upon a
threat to personal safety.
– Cases where the
only harm suffered by the applicant will be family hardship can be remedied by
readmitting the person to the country following the successful conclusion of
the pending application.
II. Introduction
[3]
The
applicant, who was born in Haiti and is a citizen of France, is submitting to
this Court a motion to stay an order issued against him for removal to
Saint-Martin (Guadeloupe), which is to be enforced on October 8, 2011, at 6:30
a.m.
[4]
This
motion is incidental to an application for leave and judicial review (ALJR)
challenging the decision dated September 28, 2011, by the law enforcement
officer of the Canada Border Services Agency (CBSA), denying the request to defer
removal made by the applicant on September 15, 2011.
[5]
The
Court agrees with the respondent’s position that the applicant does not meet
the three-part test set out in Toth v. Canada (Minister of Employment and Immigration)
(1988), 86 N.R. 302, 11 A.C.W.S. (3d) 440 (FCA). Consequently, his motion
for a stay is denied.
III. Facts
[6]
The
applicant, Mr. Dieff Mondelus, was born in Haiti and holds
French citizenship. He arrived in Canada for the first time on
July 5, 2008, as a visitor.
[7]
On
December 15, 2008, the applicant married Ms. Mélanie Forand.
[8]
On
March 30, 2009, the period of the applicant’s stay was extended to June 30,
2009.
[9]
On
April 28, 2009, Citizenship and Immigration Canada (CIC) received an
application for permanent residence in the spouse or common-law partner class
together with an application to sponsor and undertaking from Ms. Forand in the
applicant’s favour (APR #1).
[10]
That
same day, the applicant also filed a work permit application.
[11]
In
the weeks that followed, around the month of May 2009, the applicant apparently
separated from his spouse and stopped living with her, and then subsequently
began dating Ms. Teryka Trudel in the summer of 2009.
[12]
Although
the applicant alleges in his affidavit that it was obvious to him that his APR #1
was moot once he separated from his spouse, and that he simply forgot to
communicate that fact to CIC, the evidence in the record shows that CIC sent him
a request for additional information on July 20, 2009, and the information
requested from the applicant was received on August 10, 2009.
[13]
On
December 10, 2009, CIC received from Ms. Forand a request to withdraw
sponsorship, in which she stated that the marriage had not been bona fide
and that the applicant was trying to make her maintain the application.
[14]
On
January 19, 2010, CIC advised the applicant that his APR #1 had been rejected,
given the withdrawal of the sponsorship application and his spouse’s
allegations. CIC also rejected his application for a work permit and informed
the applicant that he was now without status and had to leave Canada immediately.
[15]
The
applicant did not contest that decision.
[16]
The
applicant waited until April 4, 2010, before leaving Canada. He returned
to the country on May 5, 2010, and was admitted with a visitor record expiring
on June 25, 2010.
[17]
On
June 25, 2010, an officer issued a report under section 44 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27(IRPA) against the applicant,
because he had reasonable grounds to believe that the applicant was
inadmissible under paragraph 36(1)(c) of the IRPA, given that he was the
subject of a warrant in France for armed robbery.
[18]
That
same day, the report was referred for investigation to the Immigration Division
of the Immigration and Refugee Board (ID). The CBSA then arrested the applicant
on June 29, 2010.
[19]
On
July 9, 2010, the ID found that, even though the applicant was wanted in France
and his behaviour was similar to that of a fugitive, he was not subject to paragraph
36(1)(c) of the IRPA. The ID released the applicant with conditions that
same day.
[20]
On
January 5, 2011, CIC received an application for permanent residence in the
spouse or common-law partner class together with an application to sponsor and
undertaking from Ms. Trudel in the applicant’s favour (APR #2).
[21]
On
January 11, 2011, CIC advised the applicant that the request to extend his stay
filed on June 14, 2010, had been denied. CIC also informed the applicant that he
was now without a status and had to leave Canada as soon as
possible.
[22]
The
applicant did not contest that decision.
[23]
On
February 24, 2011, an officer issued a report under section 44 of the IRPA
against the applicant, because he had reasonable grounds to believe that the applicant
was inadmissible under section 41 and subsection 29(2) of the IRPA for having
failed to leave Canada at the end of the
authorized stay period.
[24]
On
February 28, 2011, the applicant was given the opportunity to file a
pre-removal risk assessment (PRRA) application during an interview with a law
enforcement officer, but he chose not to pursue it. The law enforcement officer
also agreed to schedule the removal for after the date on which the applicant’s
spouse was to give birth, which at that time was expected on April 21, 2011.
[25]
On
April 29, 2011, during another interview with a law enforcement officer, the applicant
asked that his removal be deferred until he could obtain a passport for his son,
who was born on April 19, 2011. He said that he wanted to leave Canada with his
spouse and child. The law enforcement officer granted the request.
[26]
An
interview was scheduled for May 31, 2011, and then postponed to June 27, 2011,
and then again to July 7, 2011. In the meantime, on July 6, 2011, the applicant
confirmed that he had received the passport for his son.
[27]
On
July 7, 2011, the applicant met with a law enforcement officer and asked him to
grant him an administrative stay under the Public Policy under subsection 25(1)
of the IRPA to facilitate processing in accordance with the regulations of the
spouse or common-law partner in Canada class (Policy). The law
enforcement officer agreed to grant him 60 days, as provided for in the Policy,
and informed CIC of this that same day.
[28]
On
July 6, 2011, CIC sent a letter to the applicant’s spouse, informing her that
she had to file an undertaking immediately with the Quebec government.
[29]
On
September 6, 2011, during an interview with the applicant, the officer denied a
verbal request for an administrative stay under the Policy, given that he had
already received one.
[30]
On
September 15, 2011, the applicant applied for an administrative stay in
writing.
[31]
On
September 20, 2011, the officer met with the applicant again. His departure was
scheduled for October 8, 2011, to Saint-Martin, since he did not want to go to Paris.
[32]
On
September 28, 2011, the officer rejected the application for an administrative
stay of the applicant’s removal that was received on September 15, 2011.
[33]
On
September 30, 2011, the applicant filed an ALJR of that decision. This motion
for a stay is based on that application.
[34]
In
addition, as of October 3, 2011, the Quebec government’s Ministère de l’Immigration
et des Communautés culturelles (MICC) still had not received the undertaking of
the applicant’s spouse respecting the applicant.
IV. Issue
[35]
Did
the applicant demonstrate that he met the three parts of the test in Toth,
above, to obtain a judicial stay of the removal order issued against him?
V. Analysis
[36]
The
Court agrees with the respondent’s position. The applicant did not meet the
three parts of the test in Toth, above.
[37]
For
the Court to be able to issue an order to stay a removal, it must determine
whether the applicant has met each of the three parts of the test set out by
the Federal Court of Appeal in Toth, above.
[38]
In
that case, the Federal Court of Appeal decided on three tests that it imported
from the case law on injunctions, specifically the Supreme Court of Canada
decision in Manitoba (Attorney General) v. Metropolitan Stores
Ltd., [1987] 1 S.C.R. 110. These three tests are:
a. Is there a
serious issue to be decided concerning the main action?
b. Did the applicant
establish that he would suffer irreparable harm if the stay is not granted?
c. Does the
balance of convenience weigh in favour of the applicant?
[39]
The
three tests must be met conjunctively for this Court to grant the stay
requested. Even if there is only one that is not met, the Court cannot grant
the stay requested.
[40]
In
this case, the applicant did not demonstrate that there is a serious issue to
be decided as part of his ALJR of the officer’s decision, or that he will
suffer irreparable harm, and, finally, the applicant’s interests are not superior
to the public interest in wanting the removal order to be enforced as soon as is
reasonably practicable under subsection 48(2) of the IRPA.
A. Serious issue
[41]
The
serious issue threshold is high in cases where a motion for a stay is made with
respect to a refusal to defer the applicant’s removal because, if granted, the
stay will in effect give the applicant the remedy sought in the underlying
application for judicial review.
[42]
Consequently,
instead of simply applying the serious issue test, the Court must carefully
determine if, on the merits, the underlying application is likely to be allowed
(Wang v. Canada (Minister of Citizenship and Immigration), [2001] 3 FC
682, at para. 11; Thirunavukkarasu v. Canada (Minister of Citizenship and Immigration),
2003 FC 1075 at para. 3; Williams v. Canada (Minister of
Citizenship and Immigration), 2004 FC 683 at para. 8).
[43]
The
applicant must show that there is a fairly arguable case and that he has a
reasonable chance of succeeding in his main action, namely, the application for
judicial review of the officer’s decision:
[32] Moreover,
the Court now has the benefit of the Federal Court of Appeal’s recent decision
in Baron v. Canada (Minister of Public Safety and Emergency Preparedness),
2009 FCA 81 (Baron), which involved a judicial review of the exercise of
an enforcement officer’s discretion not to defer a family’s removal to
Argentina pending the determination of an outstanding H&C application.
[33] In Baron,
Justice Nadon confirmed: (1) the standard of review of an enforcement officer’s
decision to refuse to defer is assessed on the standard of reasonableness; (2)
the scope of an enforcement officer’s discretion to defer is limited; and (3) the
gauge for the assessment of serious issue on a stay application is not the
lower standard of the issue not being frivolous or vexatious but rather the
higher threshold of whether the issue raised is fairly arguable – has a
chance of success, i.e. the judge must go further and closely examine the
merits of the underlying application (see Baron, at paragraph 67). [Emphasis
added.]
(Ali v. Canada (Minister of
Citizenship and Immigration), 2009 FC 993; also, Baron, above,
at paras. 66 and 67.)
(1) Limited
discretion of the law enforcement officer
[44]
The
officer’s decision to refuse to defer the removal is owed deference by this
Court. This Court will intervene only if the decision is unreasonable (Baron,
above, at paras. 25 and 67; Ferraro v. Canada (Minister of Public Safety and
Emergency Preparedness), 2008 FC 815, at para. 40; Pacia v. Canada (Minister
of Public Safety and Emergency Preparedness), 2008 FC 629, at para. 6; Vieira
v. Canada (Minister of Public Safety and Emergency Preparedness), 2007 FC
626, at paras. 17 to 19).
[45]
The
discretion of removal officers in deferring removal is very limited (Baron,
above; Adviento v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1430, 242 F.T.R. 295 (FC); Prasad
v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 614 (FC)).
[46]
This
discretion is limited only to cases where there is a serious, practical
impediment to the removal:
[7] As my
colleague Mr. Justice Barnes noted in Griffiths v. Canada (Solicitor General), [2006] F.C.J. No. 182 at
paragraph 19, a deferral is "a temporary measure necessary to obviate a
serious, practical impediment to immediate removal".
[Emphasis added.]
(Uthayakumar v. Canada (Minister of
Public Safety and Emergency Preparedness), 2007 FC 998.)
[47]
In
Baron, above, the Federal Court of Appeal cited with approval this
Court’s decision in Simoes v. Canada (Minister of Citizenship and Immigration)
(2000), 187 F.T.R. 219, [2000] F.C.J. No. 936 (QL/Lexis), and indicated that a removal
provided for under section 48 of the IRPA was to take place except in cases of
illness, inability to travel and, possibly, H&C applications that have been
pending for a long time:
[49] It
is trite law that an enforcement officer’s discretion to defer removal is
limited. I expressed that opinion in Simoes v. Canada (Minister of Citizenship and
Immigration)
(2000), 7 Imm. L.R. (3d) 141 (F.C.T.D.), at paragraph 12:
[12] In my
opinion, the discretion that a removal officer may exercise is very limited,
and in any case, is restricted to when a removal order will be executed.
In deciding when it is “reasonably practicable” for a removal order to be
executed, a removal officer may consider various factors such as illness,
other impediments to travelling, and pending H & C applications that were
brought on a timely basis but have yet to be resolved due to backlogs in the
system. For instance, in this case, the removal of the Applicant scheduled
for May 10, 2000 was deferred due to medical reasons, and was rescheduled for
May 31, 2000. Furthermore, in my view, it was within the removal officer’s
discretion to defer removal until the Applicant’s eight-year old child
terminated her school year. [Emphasis added.]
(2) The
officer’s decision is reasonable
[48]
The
officer’s decision was reasonable. His notes show that he took into account all
relevant elements and that, given his limited discretion, he was justified in rejecting
the application for an administrative stay.
[49]
At
the outset, it must be remembered that a pending sponsorship application is not
an impediment to removal (Salazar v. Canada (Ministre de la
Sécurité publique et de la Protection civile), 2009 CF 56,
at para. 24; Duran v. Canada (Minister of
Public Safety and Emergency Preparedness), 2007 FC 738, at para.
24).
a) The
best interests of the child and the consequences on the family
[50]
First,
contrary to what the applicant alleged at paragraphs 21 to 31 of his
memorandum, the officer did take into account the best interests of the child
and the alleged consequences of the removal on the family.
[51]
The
officer noted that the applicant had benefited from a number of administrative
stays, including one because he wished to prepare for his eventual departure in
the company of his spouse and son. The fact that his spouse decided that she
would stay in Canada with the
child is certainly not grounds for granting a temporary stay of removal.
[52]
In
addition, given the evidence submitted by the applicant, it was not
unreasonable for the officer to find that his spouse could count on the support
of her friends and family, if necessary.
[53]
A
law enforcement officer may defer removal for short-term considerations, such
as to allow a child to finish a school year, because of illness, or to ensure
that measures have been taken to provide for the care of children who are
Canadian citizens and who will not be accompanying the parent being deported (Munar
v. Canada (Minister of Citizenship and Immigration), 2005 FC 1180, [2006]
2 F.C.R. 164, at paras. 39-40).
[54]
In
this case, the request to defer the removal so that the applicant could stay
with his son and his spouse does not involve a short-term situation, especially
since the applicant did not submit any evidence showing the consequences for
the child in the short term that could constitute a serious, practical
impediment to the removal.
b) APR #2 and
the Public Policy
[55]
Second,
as the officer emphasized in his notes dated September 6 and 28, 2011, the applicant
has benefited from several stays of removal since he became subject to a removal
order. The first stay was granted so he could be present when his spouse gave
birth. The second stay was granted so that he could obtain a passport for his
son, on the grounds that he planned to leave Canada with his
entire family. Finally, a third and final 60-day administrative stay was
granted under the Policy so that sponsorship application could be examined.
[56]
In
this regard, the officer rightly found that he did not have to grant a second
administrative stay under the Policy, given that the applicant had already
received one.
[57]
In
his written submissions, the applicant seems to allege that an administrative
stay under the Policy should be extended indefinitely in all cases, until the
examination of a sponsorship application is completed. However, that is not the
purpose of the Policy.
[58]
This
Court has consistently held that the administrative stay provided for in the Policy
is limited to the period of examining a PRRA or 60 days:
[20] I
accept the Respondent’s submission that the administrative deferral under the
Policy sought by the Applicant would already have expired even if the Officer
had found that the Applicant was eligible .... [Emphasis added.]
(Enabulele v. Canada (Minister of
Public Safety and Emergency Preparedness), 2009 FC 641.)
[30] The applicant
was, therefore, not eligible for the policy since her application was submitted
after she had been invited to the pre‑removal interview. Moreover, the
administrative deferral lasts for 60 days and, if it had been applicable, would
have expired by now. [Emphasis added.]
(Duran, above; also: Hosein v. Canada (Minister of
Citizenship and Immigration), 2010 FC 551, at paras. 7-8.)
[59]
In
fact, the wording of the Policy is clear. The CBSA has agreed to grant a
temporary administrative stay of removal to applicants who qualify under the Policy.
F. ADMINISTRATIVE
DEFERRAL OF REMOVAL
The Canada Border Services Agency has
agreed to grant a temporary administrative deferral of removal to applicants who
qualify under this public policy. The deferral will not be granted to applicants
who:
• Are inadmissible for security (A34),
human or international rights violations (A35), serious criminality and
criminality (A36), or organized criminality (A37);
• Are excluded by the Refugee Protection
Division under Article F of the Geneva Convention;
• Have charges pending or in those cases
where charges have been laid but dropped by the Crown, if these charges were
dropped to effect a removal order;
• Have a warrant outstanding for removal;
• Have previously hindered or delayed
removal; and
• Have been previously deported from Canada and have not obtained
permission to return.
For those applicants who are receiving a
pre-removal risk assessment (PRRA), the administrative deferral for processing applicants
under this H&C public policy will be in effect for the time required to
complete the PRRA (R232). Applicants who have waived a PRRA or who are not
entitled to a PRRA will receive an administrative deferral of removal of 60
days.
Applicants who apply under this public
policy after they are deemed removal ready by CBSA will not benefit from the
administrative deferral of removal except in the limited circumstances outlined
below (transitional cases).
…
Where the deferral period
applies, CIC will make best efforts to process spousal sponsorship cases to
a step-one decision within 60-day period. (A step-one decision occurs after
CIC has received an application which contains evidence that the applicant is
married or in a common-law relationship with an eligible sponsor, is
living with that sponsor and that the sponsorship submitted is a valid one.)
After a positive step-one decision, the R233 stay will be invoked until such
time as CIC makes a final decision on whether to grant permanent residence.
More details on the regulatory stay are found below. [Emphasis added.]
(Applicant’s Record (AR), Exhibit B, at
pp. 36, 37, 39 and 40.)
[60]
Thus,
during this 60-day stay, CIC makes best efforts to come to a decision, provided
that the sponsorship application is valid and complies with legislative
requirements.
[61]
The
applicant had received the 60-day administrative stay. It is therefore
incorrect to claim that the officer was required to grant a second stay under
the Policy. Contrary to what the applicant is alleging in his written
submissions, the officer was well aware of APR #2—he took it into account, but
reasonably found that it did not justify another stay of removal, in view of
his obligation to proceed with the removal as soon as was practicable.
[62]
Despite
the fact that a step-one decision on the applicant’s APR #2 had not yet been
made, this was in no way attributable to the officer, the CBSA or CIC. As soon
as the administrative stay was granted on July 7, 2011, the law enforcement
officer advised CIC, which had just sent a letter to the applicant, requesting
that his spouse file an undertaking. To date, this undertaking has not been
filed because APR # 2 did not meet all requirements.
(3) APR #2 was not valid
[63]
In
addition, APR #2 cannot be considered to have been filed in a timely manner because
it appears that it was defective when filed. At the very least, contrary to Shase
v. Canada (Minister of Public Safety and Emergency Preparedness), 2011 FC 418,
cited by the applicant, it is speculation to argue that a decision could be
made shortly, given the failure of the applicant and his spouse to file a valid
sponsorship application.
[64]
In
fact, as the applicant admitted in his affidavit, his spouse was not an
eligible sponsor, since she was receiving social assistance.
[65]
At
paragraph 22 of his affidavit, the applicant alleges that he and his spouse had
not noticed this requirement when filing APR #2.
[66]
However,
aside from the fact that this is a requirement explicitly provided for in
paragraph 133(1)(k) of the Immigration and Refugee Protection
Regulations, SOR/2002-227 (IRPR), the applicant’s spouse had clearly
answered Yes to question 5 (“Are you in receipt of social assistance for a
reason other than disability?”) in the sponsorship application.
[67]
The
sponsorship application clearly states: “If you answer “YES” to any questions 5
to 13, you are not eligible to be a sponsor (or co-signer, if applicable). You
should not submit your application. See Who can sponsor in the Guide for
information.”
[68]
Thus,
without wishing to speculate or causing prejudice to the decision that may eventually
be made concerning the applicant’s APR #2, section 133 of the IRPR seems clear
as to the requirements of a sponsorship application at the time of its filing
for a favourable decision to be made:
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Requirements
for sponsor
133. (1) A sponsorship
application shall only be approved by an officer if, on the day on which the
application was filed and from that day until the day a decision is made with
respect to the application, there is evidence that the sponsor
...
(k) is not in receipt of
social assistance for a reason other than disability.
[Emphasis
added.]
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Exigences
: répondant
133. (1) L’agent
n’accorde la demande de parrainage que sur preuve que, de la date du dépôt de
la demande jusqu’à celle de la décision, le
répondant, à la fois
:
[...]
k) n’a pas été bénéficiaire
d’assistance sociale, sauf pour cause d’invalidité.
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(Also, Guzman v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1134, [2007] F.C.R. 411 at paras.
35 et seq.)
[69]
At
a minimum, it is impossible to state that a decision on the applicant’s APR #2
is imminent. While the applicant in Shase, above, had obtained his Quebec certificate
of selection, in this case, an undertaking has not even been filed yet.
B. Irreparable harm
[70]
The
concept of irreparable harm was defined by the Court in Kerrutt v. Canada (Minister of
Employment and Immigration) (1992), 53 F.T.R. 93, at paragraph 15, as being
the removal of a person to a country where his or her life or safety is in
jeopardy.
[71]
Justice
Sandra Simpson in Calderon v. Canada (Minister of
Citizenship and Immigration) (1995), 92 F.T.R. 107, [1995] F.C.J. No.
393 (QL/Lexis), mentioned the following concerning the definition of
irreparable harm established in Kerrutt:
[22] In
Kerrutt v. M.E.I. (1992), 53 F.T.R. 93
(F.C.T.D.) Mr. Justice MacKay concluded that, for the purposes of a stay
application, irreparable harm implies the serious likelihood of jeopardy to
an applicant's life or safety. This is a very strict test and I accept its
premise that irreparable harm must be very grave and more than the
unfortunate hardship associated with the breakup or relocation of a family.
[Emphasis added.]
[72]
The
burden was on the applicant to provide such evidence to the Court in support of
his allegation of irreparable harm.
[73]
In
this case, in his memorandum, the applicant did not in any way demonstrate that
there would be a serious likelihood of jeopardy to his life or safety if
he were to return to Saint-Martin. In fact, the applicant is basically
submitting the same arguments with respect to irreparable harm as he did with
respect to the serious issue.
(1) Best
interests of the child and family separation
[74]
The
applicant did not submit any evidence of harm that he would suffer if he had to
leave Canada.
[75]
The
case law teaches us that the best interests of the child do not prevent the
removal of a parent without a legal status in Canada (Baron,
above, at para. 57).
[76]
It
has also been established that it is up to the person relying on the best
interests of the child to adduce proof supporting his or her allegations. Vague
conjectures are not sufficient (Owusu v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 38, [2004] 2 F.C.R. 635, at
paras. 5 and 8; Simoes, above, Keppel v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1208; John v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 420, 231 F.T.R. 248).
[77]
Finally,
it is settled law that the separation of a parent from a child does not
constitute irreparable harm:
[TRANSLATION]
[34] As
regards the applicant’s separation from his two children in Canada, it is settled law that the
separation of the family does not constitute irreparable harm, but is instead a
normal consequence of a removal.
(Salazar v. Canada (Ministre de
la Sécurité publique et de la Protection civile), 2009 CF 56.)
[78]
What
is more, the fact that the applicant will be separated from his spouse is not a
sufficient reason to find that he would suffer irreparable harm if removed from
Canada, since this
is a direct and inherent consequence of a removal.
[79]
In
this regard, the following remarks were recently made by the Court in Malagon
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1068:
[2] In
regard to upsetting the family and the separation that must be endured by
Ms. Malagon’s spouse, this is not irreparable harm, but rather a phenomena
inherent to removal (Malyy v. Canada (Minister of Public Safety and
Emergency Preparedness), 2007 FC 388, 156 A.C.W.S. (3d) 1150 at
paragraphs 17-18; Sofela v. Canada (Minister of Citizenship and
Immigration), 2006 FC 245, 146 A.C.W.S. (3d) 306 at paragraphs 4
and 5; Radji v. Canada (Minister of Citizenship and Immigration), 2007
FC 100, 308 F.T.R. 175 at paragraph 39). To find otherwise would
render impracticable the removal of individuals who do not have the right to
reside in Canada. Further, as pointed out in Golubyev v. Canada (Minister of Citizenship and
Immigration), 2007 FC 394, 156 A.C.W.S. (3d)
1147 at paragraph 12: irreparable harm is a strict test in which
serious likelihood of jeopardy to the applicant’s life or safety must be
demonstrated.
[Emphasis added.]
(Also, Arturo v. Canada (Minister of
Public Safety and Emergency Preparedness), 2010 FC 766, at paras.
45-46.)
[80]
Perry
v. Canada (Minister of Public Safety and Emergency Preparedness), 2006 FC 378
states that irreparable harm is evaluated from the applicant’s point of view
and not from the point of view of the family members remaining in Canada:
[30]
Even where separation caused by removal may
produce substantial economic or psychological hardship to a family unit, the
test remains whether the applicant himself will suffer irreparable harm. (Mariona
v. Canada
(M.C.I.), [2000]
F.C.J. No. 1521 (T.D.); Carter v. Canada (M.C.I.), 1999] F.C.J. No. 1011 (T.D.);
Balvinder v. Canada (M.C.I.) (un, December 15, 2005,
IMM-7360-05))
[Emphasis added.]
[81]
Moreover,
the applicant and his spouse were aware of the applicant’s tenuous status; the
respondent is not responsible for the risks the applicant voluntarily took in
full knowledge of the consequences:
[16] I see
no transgressions in the conduct of the Minister; no expectations granted the applicant;
if he chose to marry while still not having his situation favourably determined
by Canadian authorities, it is at his peril, not that of the Minister who has a
duty to uphold the laws of Canada.
(Banwait v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 522 F.C.T.D. (QL/Lexis).)
(2) Pending
sponsorship application
[82]
The
applicant’s claim that he would be denied the benefit of the application of the
Policy simply because he is removed from Canada is contradicted by the very
wording of the Policy, which states: “As is the case now, clients with a
pending H&C application who are removed from Canada while their application
is being considered will be able to return to Canada if a positive decision is
rendered” (AR, Exhibit B at p. 37).
[83]
The
sponsorship application will continue to be processed after his removal, and
the applicant will be able to return to Canada if the decision is in his favour
(Ibrahima v. Canada (Minister of Public Safety and Emergency Preparedness),
2011 FC 607, at para. 44; Berki v. Canada (Solicitor General), 2005 FC 1084,
at para. 5).
[84]
Moreover,
the fact that the applicant cannot be present in Canada while his
APR #2 is being processed does not meet the definition of harm established in Calderon,
above, namely, jeopardy to his life.
[85]
In
addition, there is nothing to prevent the applicant from being sponsored by his
spouse from outside Canada.
[86]
In
fact, this is the usual practice. Moreover, the existence of an application
based on humanitarian and compassionate grounds in this case is not a reason to
defer removal and does not constitute irreparable harm, since “the H&C
process is an exception to the general legislative intent that persons apply to
be in Canada from outside Canada” (Gyan v. Canada (Minister of Citizenship
and Immigration), 2007 FC 771, at para. 10).
[87]
Moreover,
it is speculation to say that the applicant’s spouse will be dependent on social
assistance if the applicant is removed, thereby making her unable to sponsor
the applicant from outside Canada.
[88]
There
is no evidence in the record that the applicant’s spouse cannot use the
services of government-subsidized daycare centres, family members or friends or,
as a last resort, private daycares, as do many other mothers who are in the
work force. In any case, this does not constitute irreparable harm.
(3) No
alleged jeopardy to life or safety
[89]
Finally,
the applicant’s affidavit and his written submissions do not allege any
jeopardy to his life if he were to be removed to Saint-Martin.
[90]
The
Court agrees that a removal is never easy, but nevertheless notes that the applicant
is in the same situation as every other person who is removed.
[91]
In
light of the foregoing, the applicant has not met the second test in Toth,
above.
C. Balance of
convenience
[92]
Subsection
48(2) of the IRPA imposes the obligation of enforcing the removal order as soon
as is reasonably practicable:
|
48.
(1) A
removal order is enforceable if it has come into force and is not stayed.
(2) If a removal order is enforceable,
the foreign national against whom it was made must leave Canada immediately and it must be
enforced as soon as is reasonably practicable
|
48.
(1) La
mesure de renvoi est exécutoire depuis sa prise d’effet dès lors qu’elle ne
fait pas l’objet d’un sursis.
(2) L’étranger visé par la mesure de
renvoi exécutoire doit immédiatement quitter le territoire du Canada, la mesure devant être
appliquée dès que les circonstances le permettent
|
[93]
To
determine the balance of convenience, the Court must decide which of the two
parties will suffer the greater harm depending on whether the stay is granted
or refused (Metropolitan Stores Ltd., above).
[94]
In
this case, given the absence of a serious question and irreparable harm, the
balance of convenience favours the Minister, who has an interest in the removal
order issued against the applicant being enforced on the date set for it.
[TRANSLATION]
Having found no serious
question or irreparable harm, I have no difficulty in concluding that the
balance of convenience favours the enforcement of the removal order by the
Minister in accordance with his obligation under section 48 of the Act.
[Emphasis added.]
(Morris v. MCI, IMM-301-97, January
24, 1997 (J. Lutfy).)
[5] Assuming
without deciding that there is a serious issue to be tried in this matter, the
requested temporary stay of removal of the applicants from Canada is denied on the ground that no
irreparable harm has been established.
...
[12]
In conclusion, I find that there is nothing about the applicants' case which
takes it beyond the usual results of deportation (Melo v. Canada (Minister of Citizenship and
Immigration) (2000), 188 F.T.R. 39 at para. 21). Under
such circumstances, the balance of convenience is in favour of the respondent
as public interest requires that the removal order be executed as soon as is
reasonably practicable (Celis v. Canada (Minister of Citizenship and
Immigration), [2002] F.C.J. No. 1679, 2002 FCT 1231 at para. 4). [Emphasis
added.]
(Akyol v.
Canada (Minister of Citizenship and Immigration), 2003 FC 931; also, Mobley
v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 65
(QL/Lexis).)
[95]
Moreover,
it is important to note that several factors in the applicant’s immigration history
in Canada tip the
balance of convenience in the Minister’s favour:
a. the applicant
had the opportunity to submit an initial application for permanent residence in
the spouse or common-law partner class which was rejected, since his marriage
had been determined not to be bona fide, which the evidence in the
record seems to corroborate;
b. the applicant
is the subject of a warrant in France, and has been avoiding a return there
since his arrival in Canada in 2008. Although the ID has never
considered him to be subject to paragraph 36(1)(c) of the IRPA, it did mention
that the applicant’s behaviour met the definition of a fugitive;
c. the applicant
knowingly exceeded his authorized stay period on two occasions, in addition to
submitting a second invalid sponsorship application, and the delay in
processing it is therefore attributable to him.
[96]
The
balance of convenience weighs entirely in the Minister’s favour.
VI. Conclusion
[97]
In
view of the foregoing, the applicant does not meet the tests established in the
case law for granting a judicial stay. The motion for a stay of removal is
denied.
JUDGMENT
THE COURT
ORDERS the
motion for a stay of removal be denied.
“Michel M.J. Shore”
Certified
true translation
Susan
Deichert, LLB
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