Date: 20030625
Docket: IMM-4658-03
Neutral citation: 2003 FCT 779
Toronto, Ontario, June 25th, 2003
Present: The Honourable Mr. Justice O'Reilly
BETWEEN:
ISMAEL ALEJANDRO BARRERA
Applicant
and
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Barrera seeks a stay of an order requiring his removal from Canada to Uruguay on June 27, 2003. In 2001, Mr. Barrera made an unsuccessful refugee claim. He did not challenge that decision. Nor did he challenge a subsequent pre-removal risk assessment that concluded that he would not be at personal risk if returned.
[2] In March 2002, Mr. Barrera requested a humanitarian and compassionate exemption in respect of his application for permanent residence in Canada. That request, based primarily on the physical and mental health of his spouse, is currently outstanding.
[3] In November 2002, Justice O'Keefe granted a previous application for a stay of removal primarily on the grounds that Mr. Barrera had raised a serious issue relating to a fettering of the discretion of the removal officer. Leave to seek judicial review on that issue was subsequently denied.
[4] Mr. Barrera raises a similar argument here - that two removal officers erred in refusing to defer his removal. He argues that the officers failed to give adequate consideration to the delay in processing his humanitarian and compassionate application.
[5] The first removal officer felt that there was no basis to defer removal as the grounds asserted by Mr. Barrera had been previously dealt with by the failed leave application. However, he agreed to receive further submissions relating to the medical condition of Mr. Barrera's spouse. At Mr. Barrera's request, those submissions were considered by a second enforcement officer. She also considered the status of Mr. Barrera's humanitarian and compassionate application. She decided that deferral was not appropriate.
Issue
[6] A removal officer has a very limited discretion to defer removal given the statutory requirement that removal orders be enforced as soon as reasonably practicable (Immigration and Refugee Protection Act, S.C. 2002, c. 27, s. 48). Further, in situations where a stay would effectively grant the relief sought on the underlying application, the request must be based on relatively substantial legal grounds - more than just a serious issue. In particular, where a stay is sought after an enforcement officer has refused to defer removal, the Court must "closely examine the merits of the underlying application" (Wang v. Canada (M.C.I.), (2001), 3 F.C. 682 (F.C.T.D.)).
[7] An examination of the basis for the request for a stay discloses no basis on which to grant such an order in this case.
[8] The mere existence of a humanitarian and compassionate application is not a sufficient ground for a stay of removal, although it is a factor that may be considered by an enforcement officer (Wang, above; Simoes v. Canada (M.C.I.), (2000), F.C.J. No. 936 (F.C.T.D.); Wright v. Canada (M.C.I.), (2002), F.C.J. No. 138 (F.C.T.D.)). Where it can be shown that there is bad faith or negligence on the part of the Minister, delay in considering a humanitarian and compassionate application may be sufficient to justify a stay of removal (Appiagyei v. Canada (M.C.I.), (1995), F.C.J. No. 1211 (F.C.T.D.)). That is not the case here.
[9] The second removal officer was aware of and did consider the existence of the outstanding humanitarian and compassionate application and noted that it may take another 12-14 months to process it. It was open to the officer to take into account the delay in processing, but failure to defer removal on that basis alone does not amount to reviewable error given the limited scope of the officer's discretion. Cumulatively, the two officers who considered Mr. Barrera's request to defer removal appear to have taken account of all of the relevant circumstances and gave him an opportunity to make further submissions. I can find no basis for the argument that Mr. Barrera has been treated unfairly and, accordingly, no grounds justifying the Court's intervention by way of a stay of removal.
ORDER
THIS COURT ORDERS that
1. The motion is dismissed.
"James W. O'Reilly"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4658-03
STYLE OF CAUSE: ISMAEL ALEJANDRO BARRERA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 23rd, 2003
REASONS FOR ORDER
AND ORDER BY: O'REILLY J.
DATED: JUNE 25th, 2003
APPEARANCES: Mr. Ricardo Aguirre
For the Applicant
Ms. Mandeep Atwal
For the Respondent
SOLICITORS OF RECORD: Ricardo Aguirre
Toronto, Ontario
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20030625
Docket: IMM-4658-03
BETWEEN:
ISMAEL ALEJANDRO BARRERA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER