Date: 20050215
Docket: IMM-884-05
Citation: 2005 FC 247
Vancouver, British Columbia, Tuesday, the 15th day of February, 2005
Present: THE HONOURABLE MR. JUSTICE LEMIEUX
BETWEEN:
SIMERJIT KAUR SAMRA and
KULJIT KAUR SAMRA
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Simerjit Kaur Samra and her daughter Kuljit, age 7, citizens of India, seek pursuant to section 18.2 of the Federal Courts Act, pending the determination of their application for leave and judicial review filed February 9, 2005, a stay of the execution of a removal order which became enforceable in November 2003 after they had received a negative Pre-Removal Risk Assessment ("PRRA") decision made under the Immigration and Refugee Protection Act ("IRPA").
[2] That application seeks an order of mandamus from this Court to compel the Minister of Citizenship and Immigration (the "Minister") to decide on their request to him dated January 21, 2005, that pursuant to section 50(e) of IRPA he stay the removal order since: (1) they would be filing a humanitarian and compassionate application under section 25 of IRPA and want to be allowed to remain in Canada until that application is considered; and (2) "there has been no review of whether or not the removal would be in the best interest of her Canadian son" who was born on May 28, 2000, after the Applicant's arrival in Canada from the Philippines on January 25, 2000.
[3] I was informed at the hearing that no Humanitarian & Compassionate ("H & C") application has been filed as yet, and the record shows the Applicants failed to advise their current counsel that an H & C application had been previously filed and rejected on 11 April 2002.
[4] The Applicants entered Canada, without proper documentation, after twice having been refused by Canadian authorities in the Philippines their application for Canadian Visitors Visas. After entry, they made a refugee claim which was denied.
[5] That claim had been based on Simerjit Kaur Samra's allegation she was estranged from her husband, and if she returned to India she would be humiliated and shunned by others due to her status as a disgraced wife and mother whose husband rejected her for her infidelity and she has no support in that country, most of her immediate family residing in Canada.
[6] The Convention Refugee Determination Division ("CRDD") in its decision dated September 8, 2000, rejected the claims finding the mother not to be a credible and trustworthy witness. It was not satisfied her testimony was reliable, as regards her relationship to her husband, ie. that she was ever married, that she ever left the Philippines due to an abusive relationship and would have no support if returned to India. The CRDD found her allegations of threatening in-laws in India were "completely without foundation."
[7] Generally, such were also the conclusions reached by Immigration Officer Chan refusing the H & C application and, after holding an oral hearing, the conclusions of Pre-Removal Risk Assessment Officer Petschulat, when turning down the PRRA application. The lack of credibility was central to the refusals.
[8] I note that counsel for the Applicants' letter to the Minister was premised on a removal scheduled for January 25, 2005. That removal was deferred by officials at the Canadian Border Services Agency ("CBSA") because one of the principal Applicant's children was sick.
[9] On February 10, 2005, the Applicant attended CBSA with new travel plans having purchased tickets for departure February 17, 2005.
[10] In my view, this stay application must be dismissed for two clear and simple reasons. First, the grant of a stay is a discretionary remedy; an applicant who seeks a discretionary remedy from this Court must come with clean hands.
[11] This element is lacking here. It is simply not true the best interest of the children had not previously been considered. An H & C application had been turned down on April 11, 2002, but the Minister was advised otherwise as an inducement to granting a stay.
[12] Second, the request to the Minister was a last-minute request which was sent on Friday, January 21, 2005, at 12:40 Pacific time, to the Minister in Ottawa. The Minister was requested "to defer a removal scheduled for Tuesday, January 25, 2005." The time for the Minister to react was totally and utterly unreasonable. I will have more to say on the question of the reasonableness of timing when dealing with the factor of serious issue.
[13] I now examine the tripartite test for the grant of a stay.
[14] The balance of convenience favours the Minister. The law compels the execution of a valid removal order as soon as is practicable. The Applicants have exhausted the considerable avenues available to them to remain in Canada, and since November 2003 that removal order has been enforceable.
[15] I am not satisfied that the Applicant and her children will suffer any irreparable harm. First of all, the principal Applicant has not brought any credible evidence that she and her children will suffer any harm if returned to India, much less irreparable harm as that term is normally understood in immigration law. As I see it, the Applicant and her children will simply experience the effects arising out of deportation which, while unpleasant, do not constitute irreparable harm.
[16] Lastly, I briefly comment upon serious issue. What the Applicants are seeking is an interim stay from the execution of a valid removal order until the Minister is forced by this Court to decide whether to impose a stay of a valid removal order.
[17] The argument before me proceeded on the basis that the Minister had not delegated his section 50(e) IRPA powers and on the basis that the Minister could grant an individual stay and was not limited to a "class stay" (contrast sections 230 and 233 of the Immigration and Refugee Protections Regulations (the "Regulations")).
[18] The question to be answered is whether there is a serious issue in connection with the leave application such as would warrant a stay. As stated above, the stay request expressed in terms of a deferral was a last-minute request, which Applicant's counsel conceded was the case.
[19] Such timing breaches one of the elementary rules for the granting of a mandamus, which is that the decision-maker be afforded a reasonable time period to deal with the request. Additionally, in the circumstances, I would be prepared to infer that by not responding the Minister expressed his refusal to grant a stay because, as far as the Minister and his officials in Ottawa were concerned, the removal was set for January 25, 2005.
[20] Although not argued, it would appear that the provisions of section 233 of the Regulations do not contemplate that a stay of a removal order is in place until the Minister has made a positive decision under section 25(1) of IRPA that humanitarian and compassionate considerations are present. Such a determination takes time which would have to be established in evidence. It cannot, I would surmise, be accomplished within a matter of weeks.
[21] This view is consistent with the concern expressed by counsel for the Minister that Parliament did not contemplate section 233 of the Regulations and section 50(e) of IRPA as a means to do an end-run on the authority of removals officers to enforce or defer the enforcement of removal orders.
[22] In the circumstances, I see no serious issue.
ORDER
THIS COURT ORDERS that this stay application be dismissed.
(Sgd.) "F. Lemieux"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-884-05
STYLE OF CAUSE: SIMERJIT KAUR SAMRA et al.
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: February 14, 2005
REASONS FOR ORDER AND ORDER: LEMIEUX J.
DATED: February 15, 2005
APPEARANCES:
Mr. William Macintosh FOR APPLICANTS
Ms. Helen Park FOR RESPONDENT
SOLICITORS OF RECORD:
William Macintosh Associates FOR APPLICANTS
Vancouver, BC
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada