Federal Court Decisions

                                                                                                                                          Date:    20020211

                                                                                                                  Court File No.:    IMM-473-02

                                                                                                               Neutral Citation: 2002 FCT 153

Ottawa, Ontario, this 11^th day of February

PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER

BETWEEN:

                                                    ALEXANDRU CSABA RETTEGI

                                                                                                                                                       Applicant

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 Mr. Rettegi has been in Canada without status since August 1999. The system eventually caught up to him but it did so at a very inconvenient time. He asks the Court for an order staying his removal while he challenges the Enforcement Officer's decision not to defter his removal.

[2]                 The facts are not complex. Alexandru Rettigi is an ethnic Hungarian citizen of Romania. He entered Canada with a false Hungarian passport on August 29, 1999. He says that he made a refugee claim in December of 1999 but the Minister's records show that the claim was made in May 2000. His counsel explains that he mailed his refugee claim to the authorities in December 1999, but they did not determine his eligibility until May 2000. The basis of his claim was that he was persecuted as an ethnic Hungarian in Romania, the more so because his father was an official in the disgraced Ceauscescu regime.

[3]                 In August of 2000, the applicant met the woman who would become his wife in February 2001. In May of 2001, he made an application for permanent residence, called a Married Inland Spousal Application, which is effectively a type of application for landing from within Canada on humanitarian and compassionate grounds (an H & C application) contemplated by subsection 114(2) of the Immigration Act R.S.C. 1985, c. I-2. At this point, the applicant apparently took some very bad advice from a person who told him that he could not have two applications pending at the same time. He abandoned his refugee application and relied on the H & C application to secure his right to remain in Canada. On November 8, 2001, his wife gave birth to their son.

[4]                 In the meantime, as a result of his abandonment of his application for refugee status, the conditional departure order in force against him became effective. In October 2001, an enforcement supervisor made a decision that a warrant should issue for his arrest. The file was referred to an Enforcement Officer who reviewed the file on February 1, 2002. Inquiries made of the applicant's father, who is in Canada, revealed his phone number and his address. The Enforcement Officers attended at his home, arrested him and placed him in detention pending his removal. He was arrested on February 2, 2002 and scheduled for removal on February 6, 2002. An adjudicator ordered him released from custody on the condition that he present himself for removal as scheduled, which he did. In the meantime, difficulties developed as to the issuance of Romanian travel documents as a result of which the February 6 removal had to be postponed and has not yet been rescheduled.

[5]                 The evidence is that the applicant's wife is on maternity leave and will soon have to return to work. The applicant no longer has a work authorization so that he cannot get a job but could provide child care while his wife works. While the affidavit evidence does not say so, representations were made to the effect that if the applicant is deported, the family will have to go on welfare.

[6]                 The original Notice of application sought to challenge a decision made by an unknown person at an unknown time. It was conceded that no request for deferral had been made because the applicant who was unrepresented, had failed to ask. Given the delay in removal, the matter was adjourned to allow the request to be made. If it were granted, the matter would be at an end. It was not resolved and, as a result, a motion was brought seeking an amendment to the notice of application to specify that the decision being challenged is the refusal to defer upon request.

[7]                 It would have been possible to dispose of the motion for a stay on the narrow technical ground of a defective application. This is not to criticize counsel who was retained at the last moment and did the best he could under the circumstances. However, given the importance of the question to the parties, I think it best to allow it to be dealt with on the merits. I therefore allow the motion amending the notice of application. The amended notice of application seeks judicial review of the failure of the Enforcement Officer to defer removal of the applicant pending the disposition of the Married Inland Spousal Application.

[8]                 The letter requesting deferral sets out the various factors thought to be relevant to deferral, including the pending H & C application and the birth of the applicant's child. The response of the Enforcement Officer, in its material parts was, that the Department had an obligation to execute removal orders as soon as reasonably practicable and that "Having considered your request, I do not feel that a deferral of execution of the removal order is appropriate in the circumstances of this case." In his affidavit, filed before the request for deferral was made, the Enforcement Officer noted that he had a limited discretion to defer removal. He expressed the view that it was limited to logistical problems such as lack of documents, physical incapacity, statutory stays or moratoria on removals to certain countries. Finally, if there were credible and objective evidence of risk of harm, the Enforcement Officer felt that he had a discretion to refer the matter for an assessment of risk of return. The Officer concluded in his affidavit that none of these factors applied in this case.

[9]                 The applicant's argument is that the Enforcement Officer was bound to exercise his discretion to consider the fact of the pending H & C application, as well as the effect of removal upon the applicant's Canadian born son. His failure to do so was a serious issue, within the meaning of the three part test applicable to application for stays of execution and interlocutory injunctions. A further serious issue was the return of the applicant to Romania without an assessment of the risk of return being done. The irreparable harm to the applicant, which is the second leg of the test, was found in the separation of the family, the risk of harm to the applicant upon being returned to a country which he says he fled as a refugee, and the risk of a permanent family separation if he is not able to return from Romania.

[10]            Counsel for the Minister points out that the jurisprudence is to the effect that the Enforcement Officer has no jurisdiction to conduct an H & C review on his own so that his failure to do so cannot be a serious issue. Furthermore, there is an abundance of authority that a pending H & C application is not grounds for a stay of execution. As for irreparable harm, counsel points out that all of the harm claimed, with the exception of the risk of return, arises from the applicant's own conduct in getting married and having a child while his immigration status was uncertain. As for the risk of return, the applicant voluntarily withdrew his refugee application, which suggests that the risk of return may not be what it is being made out to be.

[11]            The applicant's H & C application has been pending for some 81/2 months. In the course of argument, it came out that if the applicant is deported, his file will be transferred from the Mississauga Enforcement Centre where it is now being processed to the Canadian embassy in Bucharest. No information was available as to where it would go in the queue when it arrived there. Counsel for the Minister also conceded that if the applicant was deported, he could not reenter Canada without a Ministerial permit, even if his H & C application was successful. However, Chapter 5 of the Immigration Manual provides that the visa officer in the locale to which a person is removed may grant the Ministerial permit.

[12]            I do not intend to repeat here the analysis which I undertook in Wang v. Canada, 2001 FCT 148, where I held, among other things, that a pending H & C application is not grounds for a stay except perhaps in the circumstances outlined by my colleague Nadon J. in Simoës v. Canada (2000), Imm. L.R. (3d) 141 (F.C.T.D.) who spoke of an outstanding H & C application made in a timely fashion. Here we have an application made some 81/2 months ago which has yet to be disposed of. The issue of removal without a risk of return assessment arose in Saini, ([1998] 4 F.C. 328), where there was a serious allegation that the applicant would be exposed to a risk of torture if returned to India. All there is here is a withdrawn refugee application which was not made until the applicant had been in Canada for approximately 4 months.

[13]            There is also the failure of the Enforcement Officer to take into account the interests of the applicant's Canadian born child. Counsel for the Minister relied upon Davis and Taylor v. Canada, [2000] F.C.J. No 1628, for the proposition that a removal officer is not called upon to consider every factor which was to have been considered at every other point in the process. Unlike Davis, this is not a case where no H & C application has yet been made. In Wang, I specifically did not deal with the question of the best interests of the children as it was not before me. In Harry v. Canada, [2000] F.C.J. 1727, my colleague Gibson J. held that a serious issue was raised by the failure of a Removal Officer to consider the best interests of a child in the case of an H & C application which had been outstanding for some 13 months.

[14]            The record in this case suggests that the Enforcement Officer did not consider the pending H & C application and the position of the applicant's Canadian born child when disposing of the request for deferral. Does this raise a serious issue?

[15]            It is one thing to identify the factors which an Enforcement Officer may consider. It is another to dictate which factors he must consider. Does the fact that in Simoës, supra, Nadon J. commented that an enforcement officer could consider an outstanding H & C application which was made in a timely fashion mean that an Enforcement Officer must consider such a factor in dealing with a request to defer removal? It appears that this is an open question which satisfies the requirement of a serious issue to be tried.

[16]            The next issue is that of irreparable harm. It is only in the context of immigration law that one speaks of "mere" family separation, but the authorities are clear that "mere" family separation is not irreparable harm. As for the risk of return of the applicant to Romania, this is not a case like Saini where the risk was established prior to the issue of deportation arising. The only basis for assessing such a risk is a withdrawn application for refugee status. In my view, there is an insufficient factual basis to raise the prospect of irreparable harm.

[17]            In my view, the only argument for irreparable harm arises from the following words used by Robertson J.A. in Suresh v. Canada, [1999] 4 F.C. 206 when he said:

                Clearly, the issue of irreparable harm can be answered in one of two ways. The first involves an [page220] assessment of the risk of personal harm if a person is deported or deported to a particular country. The second involves an assessment of the effect of a denial of a stay application on a person's right to have the merits of his or her case determined and to enjoy the benefits associated with a positive ruling.

In that case, Roberstson J.A. granted a stay where it was clear that Suresh would not be allowed to return to Canada by the Sri Lankan authorities if he was successful in his application. The failure to grant a stay would effectively deprive Suresh of the benefit of his application.

[18]            It is argued that something similar is at play here. The applicant made an H & C application on the basis of his wife's sponsorship soon after he was eligible to make such an application. It has been in the Minister's hands for some 8 ½ months. If he is deported, subsection 55(1) of the Immigration Act will require him to obtain the written consent of the Minister before being allowed to return to Canada. Subsection 55(1) will require him to repay any amounts which the Minister has expended returning him to Romania. In addition, current processing of his application will cease and the whole matter will be remitted to consular officials in Bucharest, Romania.

[19]            Do these factors mean that the applicant will lose the benefit of his application? With respect to the Minister's consent, the Immigration Manual which is used by departmental officials contemplates that the Minister's consent will be issued where an H & C application is successful. In dealing with applications which are approved after removal, the Manual indicates that the local visa office will be advised of the approval. The steps to be taken thereafter include the following:

·           The visa office does not re-evaluate the original H & C decision.

·           The applicant is responsible for any travel expenses, cost recovery fees and, if applicable (see OP 1, Section 17.7 or OM IS 93-01 for instructions), repayment of removal costs. Where feasible, fees are paid in Canada by a relative, friend or representative on behalf of the applicant. Where this is not possible, the visa office collects the fees.

·          If the applicant is admissible, the visa office may issue a Minister's permit and if required, grant Minister's consent (an immigrant visa cannot be issued as the applicant as applied for and been granted a visa exemption which will lead to a grant of landing in Canada).

Consequently there is a mechanism for dealing with the Minister's approval at the time the H & C application is approved. It is not clear from the Manual but it appears to contemplate that processing will continue at the original office. (See the comment about the absence of a visa because the applicant has been granted a visa exemption i.e. the application has been treated as an inland application).

[20]            The loss of the benefit of the application in Suresh, supra, was absolute in the sense that it was unlikely that the Sri Lankan authorities to whom he would be delivered upon removal, would release him from custody in the event of a successful H & C so that he could return to Canada to continue fund raising for the Tigers.

[21]            This is not a case of the loss of the benefit of the application but of the process becoming more cumbersome and expensive than if the matter were disposed of while the applicant was in Canada. The applicant will likely get the benefit of his application if he is successful. Irreparable harm is not made out.

[22]            As a result, the application for a stay fails since all three factors must be present in order for a stay to be granted.

[23]            For the reasons set out above, the application for a stay of execution of the removal order in force against the applicant will be dismissed.

                                                                            ORDER

THIS COURT ORDERS that:

1.         the application for a stay of execution of the removal order in force against the applicant is dismissed.

                                                                                                                                     "J.D. Denis Pelletier"           

                                                                                                                                                               Judge