Date:
20130429
Docket:
IMM-2987-13
Citation:
2013 FC 440
Ottawa, Ontario,
April 29, 2013
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
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MANUEL ANTONIO MARTINEZ DIAZ
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
AND
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Respondents
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REASONS FOR
ORDER AND ORDER
[1]
The
Applicant, a citizen of Honduras, is requesting a stay of removal which is
scheduled for tomorrow, April 30, 2013, at 6:00 a.m.
[2]
The
Applicant has disregarded the Immigration Laws of Canada by requesting a stay
of removal for a Temporary Resident Permit application to be considered.
[3]
A
request was made for a Temporary Resident Permit by an individual who had no
status in Canada other than stays which were granted to an applicant to train and
prepare others to continue a business enterprise which was established in
Canada subsequent to a refusal of refugee status under the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA].
[4]
Subsection
24(4) of the IRPA clearly states that “a foreign national whose claim
for refugee protection has been rejected … may not request a temporary resident
permit if less than 12 months have passed since their claim was last rejected
…”.
[5]
After
having spent more than three years illegally in the United States, and
subsequent to a refusal of refugee protection status on November 5, 2012 by the
Refugee Protection Division of the Immigration and Refugee Board, the Applicant
made a first request to defer removal on February 13, 2013, which was refused.
The Applicant did not, at the time, even mention a “Temporary Resident Permit”.
[6]
On
February 28, 2013, the Applicant filed a Temporary Resident Permit application
without asking for a deferral of removal until April 18, 2013.
[7]
On
the next day, April 19, 2013, a refusal in respect of the request for deferral
of removal was communicated to the Applicant; however, the Applicant,
nevertheless, waited for one week, for the weekend, Friday afternoon of April
26, 2013, before even serving the Respondents with an application for a stay of
removal.
[8]
The
delay in proceeding with this latest stay of removal is most untoward in
respect of the Immigration Laws of Canada, its Officials in the Immigration
Service of Canada and of this Court:
[19] The Applicant’s lack of diligence
demonstrates a lack of respect for the efficient administration of justice in
immigration matters.
[20] The words of Justice Yvon Pinard in Matadeen
v MCI, IMM-3164-00 are particularly relevant in this case:
…Indeed, "last minute" motions for stays
force the respondent to respond without adequate preparation, do not facilitate
the work of this Court, and are not in the interest of justice; a stay is an
extraordinary procedure which deserves thorough and thoughtful consideration.
[21] For these reasons alone, it would be open
to this Court to outrightly dismiss this stay motion.
(Tsiavos v Canada (Minister of Public Safety and Emergency Preparedness), 2011 FC 747).
[9]
Removals
Officers have the authority to defer removal in limited circumstances as
specified in Baron v Canada (Minister of Public Safety and
Emergency Preparedness), 2009 FCA 81, [2010] 2 FCR
311:
[49] It is trite law that an enforcement officer’s discretion
to defer removal is limited. I expressed that opinion in Simoes v. Canada
(M.C.I.), [2000] F.C.J. No. 936 (T.D.) (QL), 7 Imm.L.R. (3d) 141, at
paragraph 12:
[12] In my opinion, the discretion that a removal officer may
exercise is very limited, and in any case, is restricted to when a removal
order will be executed…
[50] I further opined that the mere existence of an H&C
application did not constitute a bar to the execution of a valid removal order.
With respect to the presence of Canadian-born children, I took the view that an
enforcement officer was not required to undertake a substantive review of the
children’s best interests before executing a removal order.
[51] Subsequent to my decision in Simoes, supra, my
colleague Pelletier J.A., then a member of the Federal Court Trial Division, had
occasion in Wang v. Canada (M.C.I.), [2001] 3 F.C. 682 (F.C.), in the
context of a motion to stay the execution of a removal order, to address the
issue of an enforcement officer’s discretion to defer a removal. After a
careful and thorough review of the relevant statutory provisions and
jurisprudence pertaining thereto, Mr. Justice Pelletier circumscribed the
boundaries of an enforcement officer’s discretion to defer. In Reasons which I
find myself unable to improve, he made the following points:
−
There are a range of factors that can validly influence the timing of removal
on even the narrowest reading of section 48, such as those factors related to
making effective travel arrangements and other factors affected by those
arrangements, such as children’s school years and pending births or deaths.
− The
Minister is bound by law to execute a valid removal order and, consequently,
any deferral policy should reflect this imperative of the Act. In
considering the duty to comply with section 48, the availability of an
alternate remedy, such as a right to return, should be given great
consideration because it is a remedy other than failing to comply with a
positive statutory obligation. In instances where applicants are successful in
their H&C applications, they can be made whole by readmission.
− In
order to respect the policy of the Act which imposes a positive obligation on
the Minister, while allowing for some discretion with respect to the timing of
a removal, deferral should be reserved for those applications where failure to
defer will expose the applicant to the risk of death, extreme sanction or
inhumane treatment. With respect to H&C applications, absent special
considerations, such applications will not justify deferral unless based upon a
threat to personal safety.
−
Cases where the only harm suffered by the applicant will be family hardship can
be remedied by readmitting the person to the country following the successful
conclusion of the pending application.
I agree entirely with Mr. Justice Pelletier’s statement of the
law. [Emphasis in original]
[10]
This
Court considers that a late application for a stay of removal is a practice
that must be discouraged as it demonstrates a disrespect and a disregard for
the Immigration Laws of Canada and its Officials at all three levels of
government: those who formulate policy, the legislators and the Court.
[11]
For
all of the above reasons, the stay or removal is denied.
ORDER
THIS
COURT ORDERS that the Applicants application for a stay
of removal be denied.
“Michel M.J. Shore”
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