Docket No.: IMM-2554-01
Neutral Citation No.: 2001 FCT 741
Ottawa, Ontario, this 3rd day of July, 2001
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
PARVINDER KAUR
INDERJEET SINGH CHEEMA
HARMAN CHEEMA
DIPAN CHEEMA
GAGANDEEP CHEEMA
through their litigation guardian
PARVINDER KAUR
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicants have applied to stay their deportation from Canada to India. I have carefully read and considered all of the evidence tendered by the parties.
[2] The applicants are citizens of India that lived in New Delhi and are Sikhs.They claimed to have been victimized in the 1984 riots after the assassination of Indira Ghandi and as a result, the applicant Mr. Cheema fled India in 1996 to come to Canada. His wife and three children joined him in Canada in 1998.
[3] The applicant Pavinder Kaur Inderjeet Singh Cheema (the husband), made a claim for refugee status on November 11,1996. The claim was rejected by the Refugee Division on October 16, 1997. The panel found that the claimant was not credible and that his entire story of persecution was a fabrication.
[4] On March 18, 1998, the husband was denied leave for judicial review, on April 18, 1998 his application for consideration under the PDRCC was dismissed and on January 18, 1999 his H & C application was denied.
[5] On September 15,1998, the remaining applicants (wife and children), requested refugee status and on August 4,1999, the Refugee Division dismissed their application on grounds of lack of subjective fear of persecution and inconsistencies and contradictions in their testimony.
[6] On November 18, 1999, the remaining applicants had their application for leave and judicial review dismissed, and on November 29, 2000, it was determined that these applicants, the wife and children, would not be subjected to any risk included in the definition of the PDRCC class.
[7] On December 5, 2000, the wife and children filed an application for leave and judicial review of the PDRCC decision which was discontinued by the same applicants on February 14, 2000.
[8] A departure order was issued against the applicants for January 5, 2001. Non compliance with the departure order rendered it a deportation order. The applicants are scheduled to be deported on July 7, 2001 after a deferral to allow the children to complete their school year.
[9] On December 14, 2000, a second H & C was filed on behalf of all of the applicants, which is still outstanding.
[10] On May 9, 2001, Enforcement Officer, Melissa Sudds, issued a call-in notice to the applicants for an interview to make arrangements for their departure from Canada. An application for leave and for judicial review of the decision of Enforcement Officer Melissa Sudds was filed on May 23, 2001. This is the underlying application to the within stay application.
[11] The issue raised in this motion deals with the scope of the removal officer's discretion. Section 48 of the Immigration Act, R.S.C. 1985, c. I-2, provides for a removal order to be executed as soon as reasonably practicable.
[12] The discretion to defer removal is a discretion vested in the Minister, notwithstanding the fact that the discretion is exercised by the removal officer. The Minister pursuant to the Act is under a positive obligation to execute removal orders.
[13] I agree with my colleague Mr. Justice Pelletier, who stated in Wang v. Canada (Minister of Citizenship and Immigration) IMM-484-01, [2001] F.C.J. No. 295, 2001, F.C.T. 148, online: QL, that "...These orders are not mere administrative arrangements which the Minister can alter at her convenience. In fact, the Minister is precluded from issuing a Ministerial permit to a person who is subject to a removal order which is compelling evidence that the Minister is intended to execute removal orders as opposed to rendering them ineffective."
[14] In Wang, supra, Pelletier J. proposes a very useful framework for analysis in cases such as this where the discretion of a removal officer is at issue. In attempting to define the scope of that discretion, my learned colleague stated at paragraphs 48 and 49 that:
...At its widest, the discretion to defer should logically be exercised only in circumstances where the process to which deferral is accorded could result in the removal order becoming unenforceable or ineffective. 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.
There may be circumstances such as criminality where readmission is not to be taken for granted in the event of a successful application for exemption. Regrettable as this is, it is a result which reflects the policy of the Act, whereas exposing individuals to the risk of death or torture in circumstances where the order requiring removal may be made ineffective, does not.
[15] I am also of the view that discretion to be exercised by the removal officer does not consist of assessing risk, but rather one of assessing whether there are special circumstances that would justify her deferring the removal.
[16] In the case at bar, I note that the principal applicant as well as his wife and children have had the benefit of separate post determination risk assessments which found no objectively identifiable risk in returning the family to India.
[17] The removal officer, in my view, properly exercised her discretion in deferring removal to allow the children to complete their school year but refused to further defer the removal pending the disposition of the outstanding H & C application. Despite the able submissions of counsel for the applicants, I have not been persuaded that there is a serious issue to be tried with regards to the removal officer's conduct.
[18] A pending H & C application on the grounds that the family is to be removed from Canada and separated from friends and community is not in and of itself grounds to justify deferring a removal.
[19] I am of the view that no issues have been raised in the underlying application that would justify the Minister in not performing her statutory duty. In this case, although the applicants will not be separated, it is certain that the dislocation of the family to India will be disruptive to the parents and the children alike. A careful review of the evidence discloses no prejudice beyond that which is inherent in the notion of deportation itself. Deportation means losing ones job and leaving family and friends behind. As for the children, they will have to adjust to new surroundings, a new school, new friends, and in this instance become reaquainted with their native language. As regretful and sad as these circumstances may be, they are not such as to require intervention.
[20] In the circumstances, given that the test set out in Toth v. Canada (Minister of Employment and Immigration), (1988), 6 Imm. L. R. (2d) 123, is conjunctive, it is unnecessary for me to consider the questions of irreparable harm and the balance of convenience.
[21] For these reasons, the motion to stay the execution of the removal order will be dismissed.
ORDER
THIS COURT ORDERS that:
1. The motion to stay the execution of the removal order is dismissed.
"Edmond P. Blanchard"
Judge