Date: 20080515
Citation: 2008 FC 612
Docket: IMM-2010-08
BETWEEN:
GURCHARN
SINGH MANN
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY
PREPAREDNESS
Respondent
Docket: IMM-2033-08
BETWEEN:
GURCHARN
SINGH MANN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR
ORDER
PHELAN J.
I. INTRODUCTION
[1]
These
are the reasons for the Order of May 5, 2008 staying the deportation of the
Applicant.
[2]
There
are two leave applications for judicial review in issue. The matter in IMM-2010-08
is a challenge to a decision of a Removal Officer not to defer deportation
pending a determination of a long-standing H&C application. The other
matter, IMM-2033-08, is an application for leave to seek mandamus of the
H&C application decision on the grounds that the delay of over three years
to process the application is, effectively, a refusal to decide the H&C in
a reasonable time.
[3]
In
granting this stay and providing reasons, I do not wish to be taken as in any
way usurping the leave judge who will have before him/her a more complete
record (the Respondent has not filed its Record in either file) and possibly
more time to consider the merits of the leave applications.
[4]
This
case is supported by the two experienced counsel’s affidavits with respect to
the delays in the immigration system regarding processing H&Cs, as well as
the likelihood of a meaningful chance of success on an H&C once an
applicant is removed.
II. BACKGROUND
[5]
The
Applicant is a citizen of India. He has been in Canada for 22 years
– since December 6, 1985. His refugee claim was denied in June 1990 and he was
ordered deported in August 1990.
[6]
The
Applicant disappeared in November 1990 just prior to his removal. He was
arrested in 1997 on an immigration warrant and released on terms shortly
thereafter.
[7]
Since
then, he has remained available for deportation for the last 11 years – his
presence known to immigration authorities.
[8]
The
Applicant’s first H&C was refused in February 2001. His PRRA was denied in
January 2005.
[9]
He
submitted a second H&C in November 2004. The file was transferred to Mississauga in April
2005 where apparently it has remained.
[10]
On
April 23, 2008, the Applicant made a request to defer removal due to his
pending H&C application. That deferral was refused on April 28, 2008, and
removal scheduled for May 7, 2008.
III. ANALYSIS
[11]
The
legal test for a stay is so well-known that it need not be repeated here.
[12]
For
purposes of analysis, I have conflated the two cases because they rely on
essentially the same facts and law.
A. Serious
Issue
[13]
When
one cuts through all the arguments, the Applicant’s legal issue is the
unreasonable delay in processing his H&C application.
[14]
On
the face of it, the Applicant’s situation is replete with puzzling governmental
delay especially since he was released in 1997.
[15]
The
affidavit of Robin Seligman, Chair of the Immigration Section of the Canadian
Bar Association, is to the effect that Immigration Canada can deal with delays,
and does in fact do so, by transferring files from a busy office such as Mississauga to less busy
centres. The result is that H&Cs can be dealt with, in some cases, as early
as within six months.
[16]
The
Respondent has not addressed this evidence.
[17]
The
Court is left with the conclusion, at this stage, that the delay – which on its
face is long – is compounded by issues of administrative convenience rather
than administrative burden.
[18]
The
Applicant says that the Removals Officer failed to address the issue of delay.
With respect, the jurisdiction of the Removals Officer to defer is very
limited. Reliance on interference with the Applicant’s ability to play in his musical
band or teach in his temple is so weak an argument as to undermine the
seriousness of the challenge to the immigration processing system.
[19]
However,
given the low threshold on serious legal issue as well as an unexplained
three-year delay – which approaches the timeframe which this Court, in cases
such as Bakhsh v Canada (Minister of Citizenship and Immigration)
(2004), 256 F.T.R. 195, has found raises issues of reasonableness, the
Applicant has met the first threshold for a stay.
B. Irreparable
Harm
[20]
Again,
focussing on the substance of the Applicant’s two cases, the harm alleged is
that, in reality, the rights to an H&C are rendered nugatory upon removal.
[21]
In
this regard, the Applicant has submitted the affidavits of two lawyers – Robin
Seligman and Barbara Jackman. Their evidence is to the effect that, despite
government policy statements, their experience has been that once an H&C
applicant is removed, while processing of an H&C continues, it is a
processing “to a refusal”.
[22]
The
Court recognizes the frailties of this evidence in that it is anecdotal and
unscientific or unresearched. However, the affiants have shown through an
Access to Information request that the government keeps no statistics to show
that an H&C applicant has a fair chance of success despite removal.
[23]
As
frail as this evidence is, there is no substantive rebuttal evidence from the
Respondent.
[24]
As
the case law discloses, it has been this Court’s presumption that removal would
be a neutral event in the context of a consideration of an H&C application.
Indeed the Court apparently receives assurances from the Respondent to this
effect on a regular basis.
[25]
The
Applicant has raised doubt as to these assurances. The effect of the
Applicant’s evidence is that an applicant, for all practical purposes, loses his
right to a fair consideration of his H&C when he is removed from Canada.
[26]
The
issue of the effect of removal touches on all three elements for a stay - serious
issue, irreparable harm and balance of convenience.
[27]
There
may be all sorts of reasons that the perception held by the affiant counsel is
not sustainable. The difficulty, at this stage, is that there is no other
evidence before the Court to show that the perception is unfounded.
[28]
Therefore,
the Applicant has met the irreparable harm threshold – at least on this record.
C. Balance
of Convenience
[29]
The
Court is mindful that this Applicant has sullied his “clean hands” by
disappearing for seven years. Nor is the Court particularly persuaded in the
Applicant’s favour by his multiple use of immigration procedures.
[30]
However,
there is a public interest raised in the issues of the timeframes for
processing of H&Cs as well as the issue of the effect of removal on an
undecided H&C application. The balance favours the Applicant in this case.
IV. CONCLUSION
[31]
For
all these reasons, I have exercised my discretion to grant a stay until the
leave applications can be dealt with on a more complete record.
“Michael
L. Phelan”
Ottawa, Ontario
May
15, 2008
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