Toronto, Ontario, August 28, 2006
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
and
AND EMERGENCY PREPAREDNESS
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”
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4662-06
STYLE OF CAUSE: BASEL MAKHOUL HWARA
v. THE MINISTER OF CITIZENSHIP
AND IMMIGRATION CANADA.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: August 28, 2006
APPEARANCES:
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Ms. Geraldine MacDonald
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Ms. Angela Marinos
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SOLICITORS OF RECORD:
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GERALDINE MacDONALD Toronto, Ontario
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JOHN H. SIMS, Q.C. Deputy Attorney General of Canada
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