Date: 20010418
Docket: IMM-1701-01
Neutral citation: 2001 FCT 336
Ottawa, Ontario, this 18th day of April, 2001
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
PAWEL EDWARD SKLARZYK, BEATA SKLARZYK,
and MATEUSZ SKLARZYK, DOMINIK SKLARZYK,
JEREMY SKLARZYK, MATYLDA SKLARZYK
by their litigation guardian PAWEL EDWARD SKLARZYK
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicants who have lived in Canada since 1994, without status, have brought this motion to stay the execution of a removal order that provides for the removal of the applicants to Poland on April 21, 2001.
[2] The adult applicants are citizens of Poland and of no other country. Two of the Children, Mateusz and Dominik, are citizens of Poland. The last two children, Jeremy and Matylda, were born in Canada and are citizens of Canada.
[3] The applicants had resided together as a family with the parents of the adult applicant Beata Sklarzyk (hereinafter the grandparents). The said grandparents were part of the family and helped in the raising of the children.
[4] The two older children attend school in Canada. Mateusz is in Grade 6 and Dominik is in Grade 9. Both children are doing well in school and have adjusted well to life in Canada.
[5] The applicant, Pawel Edward Sklarzyk, started a business in 1995. He does caulking work on windows and window washing. His business has been successful. He is the sole proprietor with no employees, and has succeeded in securing a number of contracts for work to be performed.
[6] There is evidence to support the applicants' contention that an H & C application was filed on their behalf, on April 12, 2000, by their counsel in an attempt to regularize their status in Canada.
[7] The application was never acknowledged by Canada Immigration and the applicants were informed that no record of this application existed upon their detention in March 2001.
[8] A second H & C application was submitted on March 20, 2001.
[9] An applicant seeking a stay of execution must show that there is a serious issue arising from the underlying application for judicial review, that irreparable harm will result if the remedy sought is not granted and finally, that the balance of convenience favours the applicant.
[10] The granting of this motion would in effect grant the relief sought in the applicants' underlying application for leave and for judicial review (i.e. deferring removal). In such cases, I accept that the Court must engage in a more extensive review of the merits of the case. Then, when the second and third stages of the test are considered and applied, the anticipated results on the merits should be born in mind.[1]
[11] The extent of a removal officer's discretion has been the subject of much debate by this Court. It is generally accepted that a pending H & C application in itself is not sufficient for an enforcement officer to exercise his or her discretion to defer a removal order. Mr. Justice Pelletier canvassed the issue in Wang[2] and concluded:
...Deferral for the mere sake of delay is not in accordance with the imperatives of the Act. One instance of a policy which respects the discretion to defer while limiting its application to cases which are consistent with the policy of the Act, is that deferral should be reserved for those applications or processes where the failure to defer will expose the applicant to the risk of death, extreme sanction or inhumane treatment in circumstances and where deferral might result in the order becoming inoperative. The consequences of removal in those circumstances cannot be made good by re-admitting the person to the country following the successful conclusion of their pending application. Family hardship cases such as this one are unfortunate but they can be remedied by readmission.
[12] The Act provides that a removal order is to be executed by the removal officer when "reasonably practical". The plain meaning of this limited discretion would address issues that are inherent in the removal process. In addition, discretion has been found to exist to ensure that risk of serious harm to the person has been properly assessed before a person is returned to face that risk. It would follow that deferral to allow the completion of an H & C. application in cases where risk of harm is not in issue, would not be appropriate.
[13] With regards to judicial review of the removal officer's decision not to defer the stay, the applicable standard of review is reasonableness. In my view, it was not unreasonable for the removal officer to decline to defer the removal on the facts of this case.
[14] The evidence does not point to a risk of serious personal harm, but rather to those regrettable circumstances that result from deportation itself.
[15] I find no reversible error in the officer's conduct and for this reasons find that the application for judicial review would not succeed. It therefore follows that I fail to find serious issue in the underlying application.
[16] To the extent to which I am required to consider irreparable harm, I find no evidence of irreparable harm beyond the undeniable pain associated with family breakup, dislocation, and separation from familiar surroundings.
[17] I make mine the words of Pelletier J. in Melo:[3]
...If the phrase "irreparable harm" is to retain any meaning at all, it must refer to some prejudice beyond that which is inherent in the notion of deportation itself. To be deported is to lose your job, to be separated from familiar places and places. It is accompanied by enforced separation and heartbreak.
[18] For the above reasons, I dismiss the application for a stay.
ORDER
THIS COURT ORDERS that:
1. The application brought by the applicants to stay the execution of a removal order that provides for the removal of the applicants to Poland on April 21, 2001, is dismissed.
"Edmond P. Blanchard"
Judge