Federal Court Decisions

 Date: 20120202

Docket: IMM-967-12

Citation: 2012 FC 139

Ottawa, Ontario, February 2, 2012

PRESENT:     The Honourable Mr. Justice Shore

BETWEEN:

           REASONS FOR ORDER AND ORDER

[1]               The human condition is the very substance of the narrative of each court decision. The unfortunate circumstances of this matter stem from a narrative of a couple and their son. The family came to Canada on visitors’ visas four and a half years ago; and attempted to remain in Canada by initiating different procedures, on several occasions, that would allow a regularization of status, although a legal foundation for a regularization of status was ruled not to exist in any proceeding which the family had, thus far, undertaken.

[2]               As unfortunate as the situation appears, the matter, assessed on its own merits for the purpose of a stay of removal, lacks legal foundation.

[3]               If the Applicants’ application for a stay of removal of the Enforcement Officer’s decision would be granted, the matter, bearing no exceptional circumstances as interpreted per the jurisprudence in such circumstances, would simply serve as a potential precedent for individuals who come to Canada as visitors without application from abroad for permanent residence status.

[4]               This matter, in actual fact, bears no exceptional circumstances, other than that of lives (with acknowledged, recognized and understood travails and successes) becoming accustomed to life in Canada with all it holds (potential employment based on a successful work history, for one member of the couple health services, continued education for the son of the couple and a desire for a continuation of family, social and communal ties, established through the passage of time); and, thus, expectation of entitlement to permanent establishment sets itself up for a fall; in that, from a legal perspective, permanent establishment cannot be expected to gain legitimacy, when it has none.

[5]               Thus, the conjunctive tripartite Toth decision (Toth v. Canada (Minister of Employment and Immigration) (FCA), [1988] 86 NR 302) test criteria have not been met for this family from the Philippines.

[6]               Neither the positive employment potential nor the family, communal and social ties, in addition to the need for health services and continued education for the son of the couple, can change the overall legal perspective to satisfy the Toth decision criteria.

[7]               It is not for a Court that must interpret legislation and apply pertinent jurisprudence to grant a stay of removal when judicially the narrative of the matter does not allow for such judicial interpretation (two deferrals of removal had been previously granted to assist the family in its transitional changes by the relevant enforcement authorities). Only executive ministerial discretion can grant such an exemption from application from abroad for permanent residence.

[8]               In conclusion, the application for a stay of removal is denied.

ORDER

THEREFORE, THE COURT ORDERS that the application for a stay of removal be denied. No question of general importance is certified.

“Michel M.J. Shore”

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                          IMM-967-12

STYLE OF CAUSE:                          ANGELITO TAYAG

                                                            PERCIDITA VISPERAS

                                                            KRISTOFFER FRANCIS TAYAG

                                                            and

                                                            THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS

PLACE OF HEARING:                    Ottawa, Ontario

                                                            (by tele-conference)

DATE OF HEARING:                      February 2, 2012

REASONS FOR ORDER

AND ORDER:                                   Shore J.

DATED:                                             February 2, 2012

APPEARANCES:

SOLICITORS OF RECORD: