Toronto, Ontario, August 9, 2005
PRESENT: THE HONOURABLE MR. JUSTICE LEMIEUX
BETWEEN:
Applicant
and
THE SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is a stay application from a decision by a removal officer not to defer the applicant's removal to Hungary.
[2] On serious issue, the applicant argued two points: first, that the announcement by the Government of Canada on February 18, 2005 created a legitimate expectation the applicant would not be removed from Canada until the application for permanent residence, sponsored by his wife, had been decided (the Spouse or Common-law Partner in Canada Class); second, that the removal officer did not consider the impact of a psychologist's report would have on the applicant and his wife.
[3] The applicant first arrived in Canada in 2001 making a refugee claim which was refused.
[4] On January 16, 2005 he married a permanent resident in Canada who first sponsored him by filing an application in late January 2005 which would be processed outside Canada but when the new policy came out the applicant and his wife filed an inland application.
[5] In my view, the applicant has not made out a serious issue to be tried. On Citizenship and Immigration Canada's website concerning the new policy, the following answer is given to the question "Does this announcement mean that the people under removal orders who are married to a Canadian citizen or a permanent resident will be able to stay in the country until their application is assessed?"
Most spouses and common-law partners can stay in Canada while their application is being processed. However, applicants who are under an enforceable removal order and who are not permitted to have a hold put on their removal (administrative deferral of removal) will be required to leave Canada. Their application for permanent residence will continue to be processed and, if positive, the applicant will be able to return to Canada.
[6] The applicant complains the policy is not clear although he concedes that he has been under an enforceable removal order since October 2003. He says nobody told him he could not benefit from an administrative deferral of removal and that persons who are deemed removal ready cannot benefit from the administrative deferral. The short answer to this argument is that having being put on notice that persons in his situation (i.e. under an enforceable removal order) may be required to leave the country pending the decision, it was his obligation to inquire whether he might benefit from administrative deferral. In the circumstances, no legitimate expectation could arise which would require the removal officer not to remove him.
[7] On the second part related to serious issue, a review of the removal officer's notes shows he considered the psychologist's report and even sent it to a medical officer in CIC for assessment. This medical officer found there was no medical contraindication for the client to return to Hungary and be treated there. The applicant argues he and his wife should not have to experience disruptive stress. I do not agree. Parliament has provided removal orders must be enforced as soon as reasonably practicable and the harm the applicant and his wife allege they would suffer is inherently part of the deportation process itself.
[8] It follows from my determination of harm on the serious issue that the applicant has not made out a case for irreparable harm.
[9] Moreover, the balance of convenience favours the Minister.
ORDER
THIS COURT ORDERS that this stay application be dismissed. The Court further orders that the Respondent by properly identified as the Solicitor General of Canada.
"François Lemieux"
JUDGE
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-4656-05
STYLE OF CAUSE: NORBERT BERKI
Applicant
and
THE SOLICITOR GENERAL OF CANADA
Respondent
DATE OF HEARING: AUGUST 8, 2005
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: LEMIEUX J.
DATED: AUGUST 9, 2005
APPEARANCES BY:
Hart Kaminker FOR THE APPLICANT
Alison Engel-Yan FOR THE RESPONDENT
SOLICITORS OF RECORD:
Hart Kaminker
Barrister and Solicitor
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT