Date: 20060828
Docket: IMM-4662-06
Citation: 2006
FC 1035
Toronto, Ontario, August 28, 2006
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
BASEL MAKHOUL HWARA
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1]
The facts
speak for themselves
[2]
The motion
is for an order to stay the removal of the applicant until the decision is made
on the pending application for leave.
BACKGROUND
[3]
The
applicant challenges the decision of the Expulsion officer, dated August 18,
2006 that refused to defer removal in this case.
[4]
The
applicant is a citizen of Syria who is scheduled to be
removed on August 30, 2006.
[5]
The
applicant entered Canada in October 2003 on a valid
visitor visa. He tried to enter the United States illegally but was returned to the Canadian authorities. At
that point, he made a refugee claim. His refugee claim was refused on September
7, 2004 by the Refugee Protection Division which determined that he was not a
credible witness. The applicant challenged this decision, but this Court denied
leave on December 9, 2004 (IMM-8397-04).
[6]
On
February 14, 2005, the applicant submitted a humanitarian and compassionate (H&C)
application. This application was referred to the CIC Scarborough in July 2005
and is pending.
[7]
On
December 3, 2005, the applicant attended a pre-removal interview at the Greater
Toronto Enforcement Centre, at which time he received a PRRA application. He
submitted his PRRA application on December 16, 2005.
[8]
On January
19, 2006, the applicant married a permanent resident of Canada
[9]
On March
17, 2006, the applicant submitted a spousal application which is pending.
[10]
The applicant’s PRRA was refused on May 3, 2006. A PRRA officer
determined that the applicant would not be subject to a risk of torture, risk of cruel and unusual treatment or punishment if he
returned to his country of nationality. The Applicant was served with his PRRA
on June 15, 2006. He brought an application for leave and for judicial review
challenging this decision (IMM-3629-06) but did not perfect his application.
[11]
On June 15, 2006, the Applicant was given a Direction to Report for
removal on July 9, 2006. During this interview, he submitted a deferral
request. The Applicant later bought his own ticket and was scheduled for
removal on August 30, 2006.
[12]
The Applicant requested that removal be deferred pending the
H&C application or the spousal application. The officer noted that neither
application creates a statutory or regulatory stay of removal. She also noted
that a decision of these applications is not imminent. Further, she
acknowledged that separation of the couple will not be convenient, but
concluded that this type of inconvenience is a normal consequence of
deportation. Thus, she decided that deferral was not appropriate in this case.
[13]
A second deferral request was made on August 10th and 11th,
on the basis that separation of the couple would cause them hardship and on the
basis that he has been employed with the same employer for over two years and a
prolonged absence might cause him to lose the benefit of having continuous
employment. The officer noted that she had already considered the fact that he
was married in the first deferral request. She also noted that he is no longer
authorized to work in Canada. Although she found that the Applicant’s
commitment to his wife, employer, and the Canadian economy to be commendable,
she did not find that this was an exceptional situation warranting a deferral
of removal.
[14]
Finally, the officer received a third deferral request on August 16th,
on the basis that the Applicant’s wife is six weeks pregnant, and that she
would not be able to work as the pregnancy progresses. There was no evidence to
support the contention that the Applicant’s wife would not be able to work
while pregnant.
[15]
The officer
recognized that separation would be difficult as this time, but determined that
the pregnancy, in and of itself, was not an exceptional circumstance. The
officer noted that the Applicant’s wife, who is a permanent resident of Canada, has access to all the
health and social services available here. The officer also noted that women
are able to work while they are pregnant and that there is no indication she
will not be able to do so while pregnant. The officer concluded that deferral
of removal was not warranted.
[16]
It is this decision that the applicant
challenges.
[17]
As
the Federal Court of Appeal has held in Selliah v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 261, [2004] F.C.J. No. 1200 (QL):
Counsel says that since the appellants have no criminal record, are not
security concerns, and are financially established and socially integrated in Canada,
the balance of convenience favours maintaining the status quo until their
appeal is decided.
I do not agree. They have had three negative administrative decisions,
which have all been upheld by the Federal Court. It is nearly four years since
they first arrived here. In my view, the balance of convenience does not favour
delaying further the discharge of either their duty, as persons subject to an
enforceable removal order, to leave Canada immediately, or the Minister's duty
to remove them as soon as reasonably practicable: IRPA, subsection 48(2). This
is not simply a question of administrative convenience, but implicates the
integrity and fairness of, and public confidence in, Canada's system of
immigration control.
[18]
The balance of any inconvenience which the Applicant may suffer
as a result of his removal from Canada does not outweigh the mandate set out in
s.48 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 to
execute deportation orders as soon as reasonably practicable.
[19]
The
balance of convenience favours the Minister in these circumstances.
CONCLUSION
[20]
This
motion for an
order to stay the removal is dismissed.
ORDER
THIS COURT ORDERS that the motion for an order to
stay the removal
be dismissed.
“Michel M. J. Shore”
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