Toronto, Ontario, February 21, 2006
PRESENT: THE HONOURABLE MR. JUSTICE BARNES
BETWEEN:
ROSMAWATY NASUTION
and
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
[1] These applicants are facing imminent deportation from Canada and have brought an application for leave and for judicial review of a decision by the removal officer who declined to defer their removal. In the meantime they have applied for a stay of deportation.
[2] The applicants arrived in Canada from the United States but are citizens of Indonesia. Before coming to Canada they had lived in the United States. Their claims to refugee protection in Canada were dismissed in 2004 and their subsequent application for leave and for judicial review was dismissed later that year. In January 2005 the applicants' application for a Pre-Removal Risk Assessment (PRRA) was declined but their removal was stayed because of a decision by the Minister to suspend removals to Indonesia pending the recovery from the worst effects of the tsunami. That ministerial stay was lifted in September 2005.
[3] In August 2005 the applicants filed a humanitarian and compassionate application which, to date, remains outstanding. This application for a stay is built primarily around that outstanding application and the obvious desire of the applicants to remain here while that process is completed.
[4] I must of course, apply the tri-partite test from Toth v. Canada (M.E.I.) (1988), 86 N.R. 302 (FCA) to this application. Having done so I am bound to dismiss the application on the ground that it is not supported by evidence of irreparable harm. The kinds of hardship that are described in the affidavit material filed by the Applicants do not rise above those that are the expected and natural consequence of any deportation. Here there will undoubtedly be losses of employment and the severing of social relationships and community linkages but those do not constitute the special and compelling circumstances that are required for a stay: see Melo v. Canada [2000] FCJ No. 403 at paragraph 21.
[5] Although the applicants refer to the risk of returning to Indonesia including the lingering issues concerning the tsunami, these were considered in the earlier PRRA process and by the Minister at the time of his stay of all deportations to Indonesia.
[6] The fact that the Applicants have an outstanding H & C application cannot be seriously considered as a basis in this case for a stay. As was pointed out by counsel for the Respondent, the Applicants have been subject to removal from Canada for over a year yet they delayed making their H & C application until August 2005. Having waited they cannot complain that their H & C application might be damaged by a deportation made now. Although they claim an entitlement to a consultation with the Minister before he lifted his stay of removals to tsunami affected areas (a doubtful proposition at best) they had and continue to have the opportunity to make submissions to the Respondent in connection with the personal implications of the tsunami. There is nothing to prevent them from referring to this in their H & C application and nothing prevented them from making that case to the removal officer.
[7] Having decided that the Applicants have failed to establish irreparable harm it is unnecessary to consider the serious issue question or the issue of balance of convenience.
ORDER
THIS COURT ORDERS that this application for a stay of deportation be dismissed.
"R. L. Barnes"
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-662-06
STYLE OF CAUSE: ABDUL HAMID
ROSMAWATY NASUTION
Applicants
and
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondent
DATE OF HEARING: FEBRUARY 20, 2006
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: BARNES J.
DATED: FEBRUARY 21, 2006
APPEARANCES BY:
Jeinis Patel FOR THE APPLICANT
Bernard Assan FOR THE RESPONDENT
SOLICITORS OF RECORD:
Jeinis Patel
Barrister & Solicitor
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT