Docket: IMM-2691-02
Neutral citation: 2002 FCT 688
BETWEEN:
JOZSEF HORVATH, ROZSA JOLAN HORVATH
and ANITA HORVATH
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
(Delivered from the Bench at Toronto, Ontario on June 17, 2002)
[1] These written reasons reflect the substance of the oral pronouncement.
[2] This stay application by the applicants from their removal from Canada must be dismissed.
[3] The applicants are a family unit: husband, wife and 18 year old daughter. They are failed Refugee claimants from Hungary fearing persecution in that country because of their Roma ethnicity. On February 20th, 2002 they were advised their PDRCC application had been refused. They did not challenge that decision.
[4] On April 1, 2002, the applicants filed an H & C application. It is still outstanding. On May 7, 2002, a judge of this Court refused the applicants' leave to challenge the CRDD decision. On June 3rd, 2002, the applicants were interviewed concerning their departure from Canada. They requested deferral pending the determination of their H & C application. Anita Horvath also told the Immigration officer she had married on April 13th, 2002, a Convention refugee who was in the process of applying for landing. The applicants were told they would be removed on June 17th, 2002. On June 12th, 2002, the applicants filed an application challenging the June 3rd, 2002, decision not to defer and at the same time sought a stay from their removal.
[5] Counsel for the applicants argues a number of points on serious issue. First, he says the Immigration officer refused to exercise her discretion to even consider their arguments for deferral. This is denied by the Immigration officer. Cross-examinations were impossible. In the circumstances, I prefer the affidavit of the removal officer.
[6] Counsel for the applicants main argument on serious issue picks up from language apparently used in the Immigration Manual although Counsel for the Minister challenged its accuracy and did not know its source. The language used is:
If possible, these applications [H & C applications] should be reviewed while the applicant is still in Canada.
Counsel for the applicants argues, based on Baker v. M.C.I. [1999] 2 S.C.R. 817, the Immigration officer's failure to follow the guidelines makes the decision unreasonable.
[7] Assuming that sentence is contained in the Immigration Manual, Counsel's reliance on Baker is misplaced. The use of the words "if possible" do not require all applications for H & C to be decided before removal is effected. It certainly excludes H & C applications made in the circumstances here.
[8] Whatever the origin of the text used by Counsel for the applicants, the current text of IP-5, which is not challenged by the applicants, makes it clear the filing of an H & C application does not delay removal. Such a statement is consistent with the obligation imposed on removal officers under s. 48 of the Immigration Act and the limited discretion conferred upon them to defer removals.
[9] In any event, the guidelines are not meant to be binding on Immigration officers but will be of "great assistance" to the Court (see Legault v. Canada (M.C.I.) [2002] FCA 25. Guidelines cannot fetter statutory discretion.
[10] It has consistently been held by this Court that an outstanding H & C application, without more, does not justify a stay. The applicants have not been able to persuade me that they fit within the recognized categories for the exercise of a removal officer's discretion, including risk of harm.
[11] No serious issue has been demonstrated.
[12] On irreparable harm, the applicants have failed to adduce any evidence. Their evidence shows only inconvenience which does not qualify.
[13] The balance of convenience clearly favours the Minister in the light of s. 48 of the Immigration Act.
[14] There is another reason for refusing the stay. It was made at the last minute. The applicants were told of their removal on June 3rd, 2002. Last minute stay applications hinder the proper administration of justice. They are an abuse of process.
[15] For all these reasons, the stay application is dismissed.
"François Lemieux"
J.F.C.C.
Toronto, Ontario
June 18, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-2691-02
STYLE OF CAUSE:JOZSEF HORVATH, ROZSA JOLAN
HORVATH and ANITA HORVATH
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MONDAY, JUNE 17, 2002
REASONS FOR ORDER BY: LEMIEUX J.
APPEARANCES BY: Mr. George J. Kubes
For the Applicants
Ms. Ann Margaret Oberst
For the Respondent
SOLICITORS OF RECORD: George J. Kubes
Barrister and Solicitor
360 Bloor Street West
Toronto, Ontario
M5S 1X1
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020618
Docket: IMM-2691-02
BETWEEN:
JOZSEF HORVATH, ROZSA JOLAN HORVATH and ANITA HORVATH
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER