Date: 20041221
Docket: IMM-10297-04
Ottawa, Ontario, this 21st day of December, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
KIRPAL SINGH MANN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is a request on behalf of Mr. Kirpal Singh Mann for an Order prohibiting the respondent from removing the applicant from Canada on December 21, 2004 and an Order extending the time for the service and filing of the motion. I have considered the materials submitted and heard counsel for the parties. The test to be applied on an application for a stay of removal is the tripartite test in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A).
[2] The underlying application for leave and for judicial review in this matter (and for an extension of time for late filing) is based on the following grounds:
1. Respondent refused to wait for the outcome of the applicant's application for landing from within Canada on humanitarian and compassionate grounds ("H & C") and,
2. No written reasons were provided by the expulsions officer for the decision to direct the applicant to report for departure as scheduled.
[3] The fact that there are outstanding applications for judicial review or a pending H & C application will not, in itself, support a finding of serious issue: Moroz v. Canada (Minister of Citizenship and Immigration) (Sept 12, 2003, Ottawa, IMM-6844-03) (F.C.T.D.), Vakiriak v. Canada (Minister of Citizenship and Immigration) 2001 FCT 1235, [2001] F.C.J. No. 1682 (T.D.) and Ikeji v. Canada (Minister of Citizenship and Immigration) 2001 FCT 573, [2001] F.C.J. No. 885 (T.D.).
[4] Moreover, the absence of reasons will not satisfy the serious issue arm of the tripartite test in Toth, supra. The expulsions officer was performing an administrative function for which, in my view, she was not required to provide reasons: Boniowski v. Canada (Minister of Citizenship and Immigration) 2004 FC 1161, [2004] F.C.J. No. 1397.
[5] The affidavit of Alannah Herbert, Expulsions Officer at the Greater Toronto Enforcement Centre in Mississauga, Ontario was filed by the respondent. Ms. Herbert attests that at no time during her carriage of the applicant's removal proceedings did the applicant submit a request for a deferral of removal. No evidence of such a request has been filed in these proceedings. The applicant made his own flight arrangements for a return to India on December 31, 2004 and accordingly, a new Direction to Report for that departure date has been issued. In the absence of any evidence to the contrary, I conclude that there is no underlying decision to be reviewed and the application for leave and for judicial review has no arguable chance of success.
[6] The applicant argues that the Court should exercise its discretion to grant a stay because the best interests of his Canadian born child were not taken into account in making the decision to remove the applicant, and irreparable harm will result to the child. The removals officer has only a limited degree of discretion to defer removal: Simoes v. Canada (Minister of Citizenship and Immigration) (2000), 187 F.T.R. 219 (T.D.). However, an officer is obliged to give some consideration to a Canadian-born child's best interests: Harry v. Canada (Minister of Citizenship and Immigration) (2000), 195 F.T.R. 221 (T.D.).
[7] The evidence before me indicates that there were no submissions made or information conveyed to the removals officer with respect to the best interests of the applicant's Canadian-born child before or after the issuance of the Direction to Report on December 21st and the new Direction to Report on December 31st. Accordingly, there was no basis upon which the officer could properly consider the child's interests. The applicant argues that the officer "must have been aware" of the child's existence and should have actively taken steps to acquire more information. In my view, the onus to inform the officer rested on the applicant and having done nothing to satisfy that onus he can not now complain that she failed to consider the child's best interests.
[8] Additional grounds were raised by the applicant as justifying a stay of his removal: that he is established in Canada, owns an apartment and employs workers in his construction business. The hardship typically occasioned by removal cannot, in my view, constitute irreparable harm for the purpose of the Toth test: Melo v. Canada (Minister of Citizenship and Immigration) (2000), 188 F.T.R. 39.
[9] The applicant made an unsuccessful claim for refugee status in 1993 upon the expiry of his visitor's visa. His application for leave for judicial review of that decision was denied. He has made three H & C applications; the second was the subject of an unsuccessful judicial review application. His pre-removal risk assessment was negative. The balance of convenience in this case does not favour the applicant. Accordingly, this application will be dismissed.
ORDER
THIS COURT ORDERS that the application for a stay of the removal of Mr. Kirpal Singh Mann is dismissed.
" Richard G. Mosley "
F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-10297-04
STYLE OF CAUSE: KIRPAL SINGH MANN
AND
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December 20, 2004
REASONS FOR ORDER
AND ORDER BY : The Honourable Mr. Justice Mosley
DATED: December 21, 2004
APPEARANCES:
Mohammed Muslim FOR THE APPLICANT
John Provart FOR THE RESPONDENT
SOLICITORS OF RECORD:
MOHAMMED MUSLIM FOR THE APPLICANT
Barrister & Solicitor
Toronto, Ontario
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario