Furbert v. Canada (Public Safety and Emergency Preparedness), 2013 FC 1228

Date: 20131206

Docket:

IMM-7637-13

Citation: 2013 FC 1228

Toronto, Ontario, December 6, 2013

PRESENT:    The Honourable Mr. Justice Shore

REASONS FOR ORDER AND ORDER

[1]               The Applicants, a mother and her three children are seeking a stay of removal from deportation to Bermuda. They are challenging an Enforcement Officer’s decision to refuse to defer the Applicants’ removal on the basis of a pending two month Humanitarian and Compassionate Considerations application [H&C].

[2]               This Court has already dismissed leave of the Applicants’ negative refugee claim on the basis of state protection and the possibility of obtaining citizenship from the United Kingdom [U.K.].

[3]               Upon reading all the materials submitted by both parties and, also, having heard the parties, the Court has considered the matter in its entirety.

[4]               This Court recognizes the application of the tripartite conjunctive Toth v Canada (Minister of Employment and Immigration) (1988), 86 NR 302 (FCA) decision test criteria and has determined that no serious issue remains to be determined; no irreparable harm would ensue for the Applicants if the stay is not issued; nor is there a balance of convenience that favours the Applicants.

[5]               The discretion of the Enforcement Officer is limited. As no special circumstances in regard to the H&C are in evidence, other than the usual hardships of departure for adults and children, the Enforcement Officer’s margin of manoeuvre in such cases is non existent (Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81, [2010] 2 FCR 311)

[6]               The lack of a Pre-Removal Risk Assessment [PRRA] does not necessitate deferral on the basis of constitutionality (Toth v Canada (Minister of Public Safety and Emergency Preparedness), 2012 FC 1051; Sangarapillai v MPSEP (6 January 2013) IMM-13249-12).

[7]               Also, subsequent to the coming into force of the Balanced Refugee Reform Act, SC 2010, c 8, subparagraph 112.(2)(b.1) of the Immigration and Refugee Protection Act, SC 2001 c 27, no person subject to removal may apply for a PRRA if removal takes place within twelve months of the Refugee Protection Division’s decision that the refugee claim was abandoned; any Charter challenge must demonstrate a real risk of mistreatment, none of which was shown (Farhadi v Canada (Minister of Citizenship and Immigration), [1998] 3 FC 315, 144 FTR 76 (TD]).

[8]               The right to an automatic citizenship is, also, not contested by the Applicants in regard to the United Kingdom.

[9]               No outstanding risks or irreparable harm have been manifested to this Court.

[10]           Therefore, none of the three conjunctive criteria of the Toth (FCA) decision test have been satisfied by the Applicants.

[11]           Thus, the motion for a stay of removal is denied.

ORDER

THIS COURT ORDERS that the motion for a stay of removal be denied.

"Michel M.J. Shore"

FEDERAL COURT

SOLICITORS OF RECORD

PLACE OF HEARING:

                                                            toronto, ontario

DATE OF HEARING:

                                                            december 6, 2013

REASONS FOR ORDER AND ORDER:

                                                            SHORE J.

DATED:

                                                            December 6, 2013

APPEARANCES:

SOLICITORS OF RECORD: