Date: 20010212
Docket: IMM-547-01
Neutral Citation: 2001 FCT 68
BETWEEN:
MIGUEL ANJEL ZAJAC
NELINDA SUSANA YGARABIDE
RUBEN DARIO ZAJAC
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(Delivered from the Bench at Toronto, Ontario
on Monday, February 12, 2001)
BLANCHARD J.
[1] The applicants, Miguel Anjel Zaja, Nelinda Susana Ygarabide and Ruben Dario Zajac, have brought a motion for a stay of a removal order. The grounds of the motion are that the applicants have raised a serious issue to be tried with respect to a humanitarian and compassionate application being reviewed, that they would suffer irreparable harm if deported, and that the balance of convenience favours them. The proper test to apply in an application for a stay is the tripartite test set out in Toth v. M.E.I. (1988), 86 N.R. 302 (F.C.A.).
[2] In immigration matters, this Court has clearly established that the test for considering whether to grant a stay of proceedings is similar to that for an interlocutory injunction.1 The test requires, for the granting of such an order, that the applicant demonstrate:
| (1) that he has raised a serious issue to be tried in the underlying judicial review application; |
| (2) that he would suffer irreparable harm if no order was granted; and |
| (3) that the balance of convenience considering the total situation of both parties, favours the grant of the stay. |
[3] The threshold for determining a serious issue is recognized as a rather low one. The underlying issue in this case may well be sufficient to meet this test.
[4] This Court has held on numerous occasions that the discretion of a removal officer is very limited. As stated by Nadon J. in Simoes:
| [12] In my opinion, the discretion that a removal officer may exercise is very limited, and in any case, is restricted to when a removal order will be executed. In deciding when it is "reasonably practicable" for a removal order to be executed, a removal officer may consider various factors such as illness, other impediments to travelling, and pending H & C applications that were brought on a timely basis but have yet to be resolved due to backlogs in the system. |
| [13] With respect to pending H & C applications, certainly, the mere existence of such an application cannot bar the execution of a valid removal order. "To hold otherwise," as Noël J. aptly observed, "would, in effect, allow claimants to automatically and unilaterally stay the execution of validly issued removal orders at their will and leisure by the filing of the appropriate application. This result is obviously not one which Parliament intended."2 |
[5] In the present case, I find there is no unreasonable delay by the Minister in dealing with the humanitarian and compassionate grounds application and no refusal by the Minister to make a decision. The removal officer reasonably determined that the female applicant's medical problem did not present an impediment to removal to the United States where medication for her heart problem is available. As to her eventual removal to Argentina, if this were to occur, she has already communicated with a cardiologist and there is no evidence to support that she cannot be treated adequately for her medical condition in Argentina.
[6] Moreover, the male applicant has recently received his allegation of risk decision by a PCDO on November 6, 2000 which refused the request for deferral.
[7] Therefore, I find that the applicants have failed to establish irreparable harm should the stay not be granted. The humanitarian and compassionate grounds application will continue even after removal.
[8] It is generally accepted by this Court that humanitarian and compassionate grounds application under s. 114(2) of the Immigration Act, R.S.C. 1998, c. I-2, are not in and of itself grounds for a stay.
[9] On the last branch of the tripartite test, balance of convenience, I find that the balance of convenience favours the respondent. I make mine the position of Madam Justice Reed in Membreno-Gracia:
| ... when applicants seek humanitarian and compassionate reviews, especially on the eve of the execution of a deportation order and then argue that a stay should be granted because of the uncompleted nature of that review. This is the kind of situation in which there is potential for creating a practice which undermines the orderly operation of the legislative scheme.3 |
| [10] Finally, the inconvenience which the applicants may suffer as a result of their removal from Canada does not outweigh the public interest in executing removal orders as soon as reasonably practicable in accordance with section 48 of the Immigration Act. |
[11] For the above reasons the motion will be dismissed.
ORDER
[12] The motion is dismissed.
"Edmond P. Blanchard"
J.F.C.C.
Toronto, Ontario
February 12, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-547-01 |
| STYLE OF CAUSE: MIGUEL ANJEL ZAJAC |
| NELINDA SUSANA YGARABIDE |
| RUBEN DARIO ZAJAC |
Applicants
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
| DATE OF HEARING: MONDAY, FEBRUARY 12, 2001 |
| PLACE OF HEARING: TORONTO, ONTARIO |
REASONS FOR ORDER
| AND ORDER BY: BLANCHARD J. |
Delivered From The Bench At Toronto, Ontario On February 12, 2001
APPEARANCES BY: Mr. Max Chaudhary
For the Applicants
Ms. M. Lori Hendriks
For the Respondent
| SOLICITORS OF RECORD: Chaudhary Law Office |
| Barristers & Solicitors |
18 Wynford Drive, Suite 707
Toronto, Ontario
M3C 3S2
| For the Applicants |
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010212
Docket: IMM-547-01
BETWEEN:
MIGUEL ANJEL ZAJAC
NELINDA SUSANA YGARABIDE
RUBEN DARIO ZAJAC
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
__________________1 Toth. v. Canada (Minister of Employment and Immigration) (1988), 6 Imm. L.R. (2d) 123.
2 Simoes v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 936.
3 Membreno-Gracia v. Canada (M.C.I.) (1992), 93 D.L.R. (4th ) 620 (T.D.)