Date: 20070112
Docket: IMM-13-07
Citation: 2007 FC 27
Ottawa, Ontario, January 12, 2007
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
ANITA
RICHARDS
Applicant
and
THE
MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant, Anita Richards, is a dual citizen of Guyana and St. Kitts who seeks a
judicial stay from the execution of her removal order scheduled for January 14,
2007.
[2] She is a failed refugee claimant who was refused refugee
status by decision dated April 21, 2004. She also received a negative PRAA
decision on October 16, 2006 in respect of which leave for judicial review has
been sought.
[3] On December 13, 2006, the applicant sought deferral
of the execution of the removal order. This deferral request was refused on
December 19, 2006 by Enforcement Officer Wolowiec (the Enforcement Officer).
[4] The stay application seeks an order of prohibition
from her removal from Canada until such time as the
pending application for leave and judicial review of the Enforcement Officer’s
December 19, 2007 decision can be disposed of.
[5] The request for deferral was based on two principle
grounds:
1. The applicant entered into a bona
fide marriage with a Canadian citizen on the 21st of August,
2005. The couple immediately contacted their solicitor instructing him to make
an in-Canada spousal application. Owing to administrative delays, not due to
the couple’s fault, a necessary document for the in-Canada spousal application
i.e., their marriage certificate was only received in late June 2006 which made
them miss an opportunity for an administrative stay pursuant to the ministerial
policy under the spousal in-Canada class but which also delayed the processing
of their spousal application by Citizenship and Immigration Canada in
Vegreville, Alberta.
2. A psychological report dated July 24,
2006 which determined the applicant still suffers from psychological effects of
past trauma consistent with post-traumatic stress disorder and likely to be
exacerbated if removed from Canada.
[6] Both counsel before me
acknowledged the limited discretion a removal officer has to defer the
execution of a valid removal order.
[7] I am of the view this stay
application must be dismissed. The applicant has not satisfied me she will
suffer irreparable harm and, in my view, the balance of convenience favours the
Minister.
[8] As to irreparable harm, I accept
the submission from counsel for the Minister that such harm has not been made
out even accepting the results of the psychological report. There is no
evidence before me the applicant is taking any medication or is now under a
doctor’s care and such medication or medical services would not be available to
her in her country of return.
[9] Second, in terms of losing the
benefit of their current in-Canada processing, which both counsel conceded
would happen if she was removed, as well as the added time it will take to
process from abroad the evidence I have does not convince me such delay
constitutes irreparable harm.
[10] Moreover, as pointed out by
counsel for the Minister, the applicant had a choice of making her spousal
application abroad in the first place and cannot reap the fruits of a decision
not to do so.
[11] I find the balance of
convenience favours the enforcement of the removal order. I make the usual
reference to section 48 of the Immigration and Refugee Protection Act which
stipulates that a removal order shall be executed as soon as practicable. In
addition, there is another factor in this case.
[12] The
Canada Border Services Agency agreed to defer her removal which was scheduled
for December 2006 if the applicant bought her own ticket and presented that
ticket on January 8, 2007. The applicant failed to appear for the call-in
notice that day. The call-in notice was issued to the applicant on November
17, 2006.
ORDER
THIS COURT ORDERS this stay application is
dismissed.
“François
Lemieux”
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