Date: 20070426
Docket: IMM-1358-07
Citation: 2007 FC 445
Montréal, Quebec, April 26, 2007
Present:
The Honourable Mr. Justice E. Lagacé
BETWEEN:
TOVAR
LOPEZ JAVIER
Applicant
and
MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondents
REASONS FOR ORDER AND ORDER
[1]
This is an
interlocutory motion for a stay of the removal order issued against the
applicant.
[2]
This
motion is accompanied by a motion for leave and judicial review of the decision
dated March 27, 2007, by the enforcement officer, Goulnara Iskakova (the
officer), of the Canada Border Services Agency (CBSA), refusing to
administratively stay the applicant’s removal order pending a decision on his
application for permanent residence submitted in Canada under subsection 25(1)
of the Immigration and Refugee Protection Act (IRPA).
THE FACTS
[3]
Although
the applicant maintains in his stay motion that he asked the enforcement
officer to defer his removal during his interviews with her on April 3, 2007,
the interview notes seem to indicate that no such request was made at that
time. When the officer questioned him about his dependants, he stated that his
spouse had a son, but it appears that the applicant has not adopted the child.
[4]
When the
officer informed him of her decision, the applicant asked if he could remain in
Canada pending a decision on his application for permanent residence in Canada.
He was then told that a stay of the removal order could not be granted because
of his criminality.
[5]
The
applicant then stated that he was ready to comply with the removal and to go to
the airport to purchase his airline ticket for Mexico, so that he could return
to Canada if his application for permanent residence were granted without
having to incur a debt for his removal from Canada.
[6]
The
applicant takes issue with the officer for refusing to stay his removal,
failing to take into account his wife’s sponsorship application and not
considering the best interests of his wife’s child. Last, he maintains that the
removal order is seriously flawed, that he will suffer irreparable harm and
that the balance of convenience favours issuing a stay order.
[7]
For their
part, the respondents maintain that the stay motion should be dismissed because
it does not meet the criteria required for the Court to grant it.
THE
LAW
[8]
To assess
the merits of the stay motion, the Court must determine whether the applicant
meets the criteria laid down by the Federal Court of Appeal in Toth v. Canada (Minister of Employment and Immigration) (1988), 6 Imm. L.R. (2d) 123, 86 N.R.302
(F.C.A.). Based on this case, the
applicant must demonstrate that there is a serious issue to be tried on the
application for judicial review, that he would suffer irreparable harm if he
were deported to Mexico and that the balance of convenience lies in his favour.
[9]
These
three criteria must be met in order for the Court to grant a stay. If one of
them is not met, a stay cannot be granted. Let us see if the applicant has
satisfied these criteria.
NO
SERIOUS ISSUE
[11]
Unfortunately
for the applicant, public policy does not automatically allow the spouse of a
citizen or permanent resident in Canada to remain in Canada pending review of
his or her application for permanent residence. This policy sets out
exceptions, and the applicant falls under one of them because of his
criminality, in particular, and because he submitted his application for
permanent residence after the pre-removal interview that he attended.
[12]
Accordingly,
the applicant has not succeeded in convincing the Court that there is a serious
issue in his criticisms of the enforcement officer.
[13]
Moreover,
if the applicant relies on the best interests of his wife’s minor child in
support of his stay motion today, it appears that he has not adopted this
child, nor did he rely on these interests when requesting a stay from the
officer.
[14]
In short,
the applicant has not raised a serious issue in either his application for
judicial review or his stay motion.
Absence
OF IRREPARABLE HARM
[15]
The
applicant relies on the same risks as those he described in the PRRA
application, which was rejected by the enforcement officer.
[16]
It appears
that he did not submit any convincing evidence to demonstrate irreparable harm.
He had a PRRA but was unable to prove that he would be targeted if he were to
return to Mexico.
[17]
The
applicant relies on the separation from his spouse and her son. However, it
must be noted that he did not adopt this child although he has been close to
him for as long as they have known each other. The case law has recognized that
the destabilization or separation of a family does not constitute irreparable
harm but is a natural result of the removal (Thirunavukkarasu v. Canada
(Minister of Citizenship and Immigration), 2003 FC 1075; Celis v. Canada
(Minister of Citizenship and Immigration), 2002 FCT 1231; Henriques
v. Canada (Minister of Citizenship and Immigration), 2004 FC 51, Gray v.
Canada (Minister of Citizenship and Immigration), 2004 FC 42; Morris v.
M.C.I., IMM-301-97, January 24, 1997; Khan v. Canada (Minister of
Employment and Immigration), [1992] F.C.J. No. 1031; Boquoi v. Canada
(Minister of Employment and Immigration), [1993] F.C.J. No. 983; John v.
Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 605).
[18]
Moreover,
the applicant did not raise the issue of the best interests of his wife’s child
at the interview with the officer; she cannot be criticized for not considering
it.
[19]
For these
reasons, the applicant has not established that he would suffer irreparable
harm if he were removed.
Balance
OF CONVENIENCE
[20]
Subsection
48(2) of the IRPA provides that a removal order must be enforced as soon as is
reasonably practicable. This is the situation here; thus, the balance of
convenience favours the respondents over the applicant.
Conclusion
[21]
Unfortunately
for the applicant, he has not satisfied any of the established criteria
required to obtain a stay.
ORDER
THE COURT ORDERS that:
The motion to stay a removal
order is dismissed.
“Maurice
E. Lagacé”
Certified
true translation
Mary
Jo Egan, LLB
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