Date: 20030730
Docket: IMM-5333-03
Citation: 2003 FC 933
Toronto, Ontario, July 30th, 2003
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
GALINA FIRSOVA, VLADIMIR FIRSOV and ALEXANDR FIRSOV
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Minister has ordered the Firsov family to be removed from Canada to their native Kazakhstan on August 3, 2003. They have asked me to stay that order while they seek judicial review. In particular, they wish to challenge an immigration officer's failure to expedite their request for humanitarian and compassionate consideration.
[2] The Firsovs failed in their earlier claim for refugee status. Additionally, an immigration officer who considered whether they might be mistreated if they returned to Kazakhstan concluded that there was little risk to them. They then made an application to be exempted on humanitarian and compassionate grounds from the usual requirement to apply for permanent residency from outside Canada. They made their application in October 2002. The Minister issued a removal order against them and a removal officer refused to defer it. However, Justice O'Keefe granted a stay of the removal order while the Firsovs sought judicial review of the officer's decision. The Court denied the Firsovs leave to commence their judicial review, which resulted in the removal order for which the Firsovs now seek a stay of execution.
[3] On June 26, 2003, Counsel for the family sent a letter to the Canada Immigration Centre summarizing the humanitarian and compassionate factors in their favour, characterizing their application as "strong" and asking for early consideration of it. Mr. Dexter Jones responded. He said: "we do have a large inventory in our office and files are placed in a queue to be assigned on a 'first in, first out' basis".
[4] The Firsovs say that Mr. Jones' letter contains a "decision" not to accelerate consideration of their application. It is that "decision" they challenge. They seek judicial review of it and ask the Court to stay their removal while they do so.
[5] I did not believe any "decision" has been made for which judicial review is available. The Firsovs argue that Mr. Jones has "decided" that their application cannot be expedited. The Minister argues that the Firsovs were simply informed of the general policy to consider applications as they are received.
[6] The Firsovs support their argument by referring to s. 233 of the Immigration and Refugee Protection Regulations. It creates a stay of removal when a humanitarian and compassionate application has been granted. The Firsovs say that this Regulation implies that immigration officers have a discretion to decide humanitarian and compassionate applications on request before removal. I do not agree. The provision simply states that persons who have been granted the exemption shall not be removed until their applications for permanent residence have been decided. It recognizes that officers often deal with requests for humanitarian and compassionate consideration while the applicants are still in Canada. It does not, in itself, give immigration officials a discretion to give early consideration to some applicants over others.
[7] There may well be circumstances where the Minister does give priority to some applications. Counsel for the Firsovs described a situation where the Minister had given a group of Algerian claimants special attention. To my mind, this example does not carry with it the implications the Firsovs suggest.
[8] In effect, the Firsovs simply asked, without providing any justification, to have their application considered ahead of others. They say that their request sets in motion a chain of events: a "decision" from an immigration official; an opportunity for judicial review; and, potentially, a stay of removal in the interim. By necessity, they say the same would be true for all applicants who merely asked for early consideration.
[9] Leaving aside the administrative burden of such an arrangement, I cannot conclude that a response from an immigration official to an applicant's request to jump the queue, without any justification, amounts to a decision amenable to judicial review. It does not involve the determination of an applicant's rights and, as Mr. Jones' letter says, there is no discretion.
[10] If I am wrong about this threshold issue, I would find in the alternative that the Firsovs have failed to raise a serious legal issue to be tried. Justice Simpson recently reached the same conclusion on a similar argument in her order dated July 3, 2003, refusing an application for a stay in Banik v. Minister of Citizenship and Immigration (File IMM-4861-03).
[11] Accordingly, the motion for a stay of removal is dismissed.
ORDER
THIS COURT ORDERS that:
1. The motion for a stay of removal is dismissed.
"James W. O'Reilly"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5333-03
STYLE OF CAUSE: GALINA FIRSOVA, VLADIMIR FIRSOV
and ALEXANDR FIRSOV
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JULY 28th, 2003
REASONS FOR ORDER
AND ORDER BY: O'REILLY J.
DATED: JULY 30th, 2003
APPEARANCES: Ron Poulton
Mario D. Bellissimo
For the Applicants
Negar Hashemi
For the Respondent
SOLICITORS OF RECORD: Ormston, Bellissimo, Younan
Barristers & Solicitors
Toronto, Ontario
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT
Date: 20030730
Docket: IMM-5333-03
BETWEEN:
GALINA FIRSOVA, VLADIMIR FIRSOV
and ALEXANDR FIRSOV
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER