Date: 20080121
Docket: IMM-221-08
Citation: 2008
FC 75
Toronto, Ontario, January 21, 2008
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
JOSE FERNANDO LARANJEIRA
RIBEIRO
MARIA MANUELA RIBEIRO
HENRIQUE RIBEIRO
DIOGO RIBEIRO
Applicants
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
UPON motion, dated the 16th
day of January 2008, on behalf of the Applicants for an Order granting a stay
of the execution of the Removal Order now scheduled to occur on January 27,
2008.
AND UPON reading the submissions
of the parties and hearing oral submissions;
AND UPON concluding that the
motion for a stay of removal should not be allowed:
[1]
The
Applicants make this application for a stay of removal based on an underlying
application for leave to commence an application for judicial review of the
Enforcement Officer’s refusal to defer removal until their application to
remain on humanitarian and compassionate grounds (H & C application) is
considered
[2]
The test
for granting an order staying execution of a removal order is:
a. whether there is a serious
question to be determined by the Court;
b. whether the applicant seeking
the stay would suffer irreparable harm if the stay of removal is not granted;
and
c. whether the balance of
convenience must favours the applicant seeking the stay.
Toth v. Canada (Minister of Employment and Immigration) (1988) 86 N.R. 302 (F.C.A.)
[3]
The
Toth (above) test is conjunctive. If the Applicants fail on one of the
grounds: serious issue, irreparable harm, and balance of convenience, then
their application for a stay of removal fails.
[4]
The
Applicants are a husband and wife who citizens of Portugal. They have
been in Canada since 2005.
One of their three children was born in Canada. They
were denied refugee status and their pre-risk assessment concluded they did not
face risk of serious harm on removal back to Portugal. The
Applicants applied to remain on humanitarian grounds which appears to have been
unsuccessful.
[5]
The
Applicants did not show for a scheduled removal interview. After being
arrested on an immigration warrant and released on bond, they were scheduled
for removal on December 20, 2007.
[6]
The
Applicants requested deferral of the removal in order to sell their house and
their removal was deferred to January 27, 2008. The Applicants then made a
second H & C application to remain on humanitarian and compassionate
grounds on January 4, 2008. They submitting that their children would suffer
harm if their schooling is disrupted. They made a further request to defer
removal until their second H & C application is considered. The
Enforcement Offer denied their request for deferral.
[7]
In
Wang v. Canada (Minister of Citizenship and Immigration) [2001]
F.C.J. No. 295, Justice Pelletier considered the degree of discretion an
enforcement officer has in considering requests for deferral of removal:
Notwitstanding a general that the
discretion involved is “very limited”, Nadon J. was prepared to recognize a
discretion to defer removal pending the resolution of H&C applications
which had been made in a timely fashion but which were not yet resolved due to
backlogs in the system.
[8]
I
find the applicants’ second H & C application was not made in a timely
fashion. Further, in response to the Applicants’ submission that the
Enforcement Officer had to be mindful of the impact on the applicant children,
I find the evidence does not disclose that the children would suffer
irreparable harm on removal since the family will remain together and the
children will continue to have their parents’ support.
Conclusion
[9]
I
find the Applicants have not met the test in Toth (above). They have
not demonstrated there is a serious issue to be considered and they have not
shown they would incur irreparable harm as a result of their removal to Portugal. The
application for a stay of removal cannot succeed.
ORDER
THIS COURT ORDERS that the application for stay
of removal is dismissed.
"Leonard
S. Mandamin"
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