Date: 20031017
Docket: IMM-7969-03
Citation: 2003 FC 1208
BETWEEN:
BALAZS KEPPEL
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] By Notice of Motion dated the 10th of October, 2003, the applicant sought a stay against the execution of a removal order issued against him. The applicant had been notified on Saturday, the 27th of September, 2003 of arrangements made for his removal to Hungary. Removal was scheduled for Saturday the 18th of October. The applicant's motion came on for hearing before me, by teleconference, on Thursday, the 16th of October. At the close of the hearing, I dismissed the applicant's motion for reasons given orally. In my formal dismissal of the motion, I indicated that written reasons would follow. These are those reasons.
[2] The chronicle of the applicant's interactions with the respondent and the Immigration and Refugee Board since his arrival in Canada, which apparently was at the end of August, 1999, deserves mention. The applicant applied for Convention refugee status on the 1st of October, 1999. His claim was denied on the 23rd of April, 2001. The applicant sought judicial review of the denial of his Convention refugee claim. He was denied leave on that application for judicial review on the 6th of September, 2001. The applicant applied for landing from within Canada on humanitarian and compassionate grounds on the 6th of February, 2002. He applied for a pre-removal risk assessment on the 11th of March, 2003 and received a negative response to that application on the 23rd of April, 2003. On the same date, a removals officer deferred his removal from Canada until after a decision on his humanitarian and compassionate grounds application. His humanitarian and compassionate grounds application was denied on September 4th, 2003. The applicant has sought judicial review of that decision.
[3] As earlier noted, the applicant received notice on the 27th of September, 2003 that he would be removed from Canada two (2) weeks later. Through counsel, the applicant sought a second deferral of his removal. In support of his application for the second deferral, he submitted medical reports in respect of himself, his wife and his step-son and a psychological assessment with respect to himself. Each of the reports and the assessment post-dated the date of the negative decision on his application to be landed from within Canada on humanitarian and compassionate grounds.
[4] A removals officer denied the applicant's request for a second deferral of his removal. Judicial review of that decision has been sought and it is that application for judicial review that underlay the applicant's application for a stay of removal. For whatever reason, a stay of removal based on the application for leave and for judicial review of the negative humanitarian and compassionate grounds decision was not sought.
[5] The removals officer supported his decision not to further defer removal of the applicant with extensive notes. He notes the applicant's extensive record of interaction with immigration authorities. He further notes the medical reports and psychological assessment that were before him. In respect of the reports and assessment, he notes:
I am not a medical officer, therefore, I forwarded [the relevant pages of the material before him] to Dr. Brian Dobie, Chief Medical Officer CIC Services in Ottawa, requesting a medical opinion from the aforementioned information.
[6] The removals officer notes that he received medical advice that:
...it is safe to return Mr. Keppel to Hungary. [The medical officer] further stated medical services are available in Hungary.
[7] The removals officer notes the hardship to which the applicant's removal from Canada would subject his spouse and step-son. He concludes in the following terms:
...Mr. Keppel is safe to return to Hungary. His family situation was addressed in his humanitarian and compassionate decision by an officer who is competent to consider all the circumstances of his application and that officer rendered a negative decision.
I rely on Dr. Valerie Hindle's opinion on Mr. Keppel's medical condition in that it is safe for him to travel to Hungary and that medical facilities and programs are available to him if he so choose[s] to access them.
Based on the aforementioned information, I see no compelling reason to defer Mr. Keppel's removal from Canada.
[8] Counsel for the applicant noted that I had before me no evidence that the applicant's family situation was addressed, let alone satisfactorily addressed, in the humanitarian and compassionate grounds decision made "... by an officer who is competent to consider all the [relevant] circumstances...". While counsel's submission is clearly correct, the Court cannot be held responsible for the fact that such information is not before it. Neither can the respondent. The onus is on an applicant to establish that an application for a stay of removal is supported by evidence of a serious issue to be tried on the underlying application or applications for judicial review, of irreparable harm if removal of the applicant is not stayed, and that the balance of convenience favours the applicant.
[9] For whatever reason, the medical reports and the psychological report that were placed before the removals officer were not before the officer who considered the applicant's application for landing from within Canada, although earlier versions of such reports and assessment may have been before that officer. Equally surprisingly, the motion for judicial review of the negative humanitarian and compassionate grounds decision was not before the Court as a basis to underlie the stay application. Thus, whether there might be a serious issue to be tried on judicial review of that decision was simply not relevant on the application for a stay of removal.
[10] It was clearly open to the removals officer to rely on the negative humanitarian and compassionate grounds decision in arriving at his own decision. It was not for the removals officer to reexamine the applicant's "family situation", including the best interests of his step-son, on the request for deferral that was before him. It is not the mandate of a removals officer to sit in appeal from a negative humanitarian and compassionate grounds decision or to reexamine the factors underlying such a decision. Decisions of this Court such as Harry v. Canada (Minister of Citizenship and Immigration)[1] which reflect on the role of a removals officer who is considering deferral of removal in a context where there has been no humanitarian and compassionate grounds application or where there has been such an application and it has not been decided, are simply not relevant on the facts of this matter.
[11] Based upon the foregoing considerations, with substantial regret because the evidence before me presents a very sympathetic case in favour of the applicant and his spouse and his step-child, I determined there to be no serious issue to be tried, even against a low threshold, on the application for leave and for judicial review underlying this motion for a stay of removal. In the result, I did not proceed further to examine the issues of irreparable harm and balance of convenience.
[12] For the foregoing reasons, as earlier indicated, this motion for a stay of removal was
dismissed.
_________________________________
Judge
Ottawa, Ontario
October 17, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-7969-03
STYLE OF CAUSE: BALAZS KEPPEL v. MCI
APPLICANT'S MOTION HEARD BY TELECONFERENCE BETWEEN OTTAWA AND TORONTO
DATE OF HEARING: October 16, 2003
REASONS FOR ORDER THE HONOURABLE MR. JUSTICE GIBSON
DATED: October 17, 2003
APPEARANCES:
Ms. Robin Seligman FOR THE APPLICANT
Ms. Catherine Vasilaros FOR THE RESPONDENT
SOLICITORS OF RECORD:
Robin Seligman FOR THE APPLICANT
Toronto, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario