Date: 20080421
Docket: IMM-1429-08
Citation: 2008 FC 523
Ottawa, Ontario, April 21,
2008
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
KULWINDER
SINGH KANG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant seeks an order for a stay of his deportation which is
scheduled to occur on Tuesday, April 22, 2008. He seeks a stay pending his
application for leave and if leave is granted, of the application for judicial
review of the decision of March 14, 2008, made by an Enforcement Officer. That
decision denied the Applicant’s request to delay his deportation pending the
outcome of his application for permanent residence.
[2] The Applicant is a citizen of India. He came to Canada
via the United States of America in December of 1996, after abandoning his USA refugee claim. He also claimed refugee
status in Canada but abandoned
that claim after marrying a Canadian citizen in January of 1997.
[3] In January 19, 2006, the Applicant filed a spouse or common-law
partner in Canada application
for permanent residence. A negative Pre-Removal Risk Assessment was made on
March 7, 2007, and has never been challenged.
[4] On January 30, 2008, the Applicant's wife withdrew her Undertaking
of Assistance supporting the applicant's permanent residence application. As a
result, on February 20, 2008, the Applicant was informed that the Respondent
was precluded from rendering a decision on the application and that his file
had been closed.
[5] The wife’s withdrawal of her Undertaking that supported the first
application occurred January 30, 2008. She wrote to the Respondent on February
29, 2008, explaining that she and her husband had reconciled and she now knew
that she had erred in withdrawing her support. She asked that the original
application be reinstated.
[6] On February 27, 2008, the Applicant provided his proposed travel
itinerary and requested the deferral of removal until April 26, 2008, in order
to attend his sons’ birthdays. That request was denied as was a request to
reconsider that denial. Neither decision was challenged.
[7] On March 12, 2008, after the Applicant and his spouse apparently
reconciled, the Applicant filed a new spouse or common-law partner in Canada
application for permanent residence supported with his wife’s new Undertaking
of Assistance and again requested that the removal be deferred pending its
consideration. That request was denied on March 14, 2008, and is the decision
being challenged in the leave application pending before this Court.
[8] The Applicant argues that the Respondent, in denying the request to
defer removal, failed to consider or properly assess the best interests of his
two Canadian born children. It was argued by counsel that these interests were
essentially two-fold: the emotional support the children received from their
father and his financial support.
[9] In Wang v. Canada (Minister of Citizenship and Immigration)
(T.D.), 2001 FCP 148, Justice Pelletier (as he then was) reviewed the principles
applicable in deferral applications, in that case in the context of a pending
H&C application. He noted, correctly in my view, that if there is an
alternative remedy, such as a right of return, that should weigh heavily
against deferral. This is so because the Minister has a legal obligation
pursuant to section 48 of the Immigration and Refugee Protection Act to
effect removal “as soon as reasonably practicable”.
[10] The Applicant has possible alternative remedies which could lead to
his return to Canada, namely
the pending application filed March 12, 2008.
[11] There is no evidence that the officer failed to consider the impact
the removal will have on the children. In fact, she attested to giving such
consideration in her affidavit filed in these proceedings and her notes to file
made at the time each deferral was sought indicates such consideration was
given.
[12] Further, there is evidence to counter the suggestion that there will
be an emotional loss for the children with their father’s removal. His wife,
in February 2008, advised the officer that “he has never spent time with his
children”.
[13] Even the financial support is in question. While he attests that he
is the principal bread-winner, there is no evidence that his family will not be
able to survive financially if he is removed to India. There is no evidence as to his worth, his ability to gain
employment in India, nor
evidence that he will not be able to provide the financial support to his
family after removal that he is expected, legally and morally, to provide to
them.
[14] The Applicant also raised issues of possible mistreatment if he is
returned to India. There was a
PRRA which was negative and it has not been challenged. There is thus no
objective evidence of any risk of persecution, torture, unusual treatment or
punishment to the Applicant if he is returned to India.
[15] The Applicant
has not established that there is a serious issue to be tried not that there
will be irreparable harm if the removal order is not stayed. He has not met
the tripartite test in Toth v. Canada (Minister of Employment and Immigration)
(1988), 86 N.R. 302 (F.C,.A.). Accordingly, there are
no grounds for deferral and no basis for the stay requested.
[16] Therefore it is ordered that this application for a stay is
dismissed.
ORDER
THIS COURT ORDERS that:
1. This application for stay of
the removal order is dismissed.
“Russel W. Zinn”
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