HARSIMRAN SINGH Applicant v. THE MINISTER OF CITIZENSHIP, 2022 FC 614

Date: 20220426 Docket: IMM-3245-22 Citation: 2022 FC 614 Ottawa, Ontario, April 26, 2022 PRESENT: The Honourable Mr. Justice Roy BETWEEN: HARSIMRAN SINGH Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent ORDER AND REASONS [ 1 ] Mr. Harsimran Singh, through his counsel, seeks a deferral of the order that he be removed from Canada today, April 26, 2022. The motion runs for 440 pages and was filed late after hours on Friday, April 22, 2022.

It became available to the Court and counsel for the Respondent yesterday morning. [ 2 ] Counsel for the Respondent submitted a request in writing on April 25, 2022, for the Court to exercise its discretion to refuse to entertain such motion.

Counsel for the Respondent relied on case law in this Court which has found that late motion for stays, without a proper explanation for the delay, are not in the interests of justice ( Ocaya v Canada (Citizenship and Immigration) , 2019 CanLII 8561 ; Matadeen v Canada (Minister of Citizenship and Immigration) , June 22, 2000, IMM-3164-00; Beros v Canada (Citizenship and Immigration) , 2019 FC 325 [ Beros ]; Khan v Canada (Public Safety and Emergency Preparedness) , 2018 FC 1275 [ Khan ]; Adel v Canada (Citizenship and Immigration) , 2001 FCT 1017 [ Adel ]). [ 3 ] The Federal Court of Appeal has confirmed that such discretion exists ( El Ouardi v Canada (Solicitor General) , 2005 FCA 42 , 332 NR 76 [ El Ouardi ] at paras 6-7 ). [ 4 ] The Court heard counsel for the parties in the afternoon of April 25, 2022, for the sole purpose of hearing them on the opportunity for the Court to exercise the discretion to decline to hear the stay motion.

I note that counsel for Mr. Singh provided the Court with his views in writing on the Respondent’s request one hour before the conference call was to take place. The Court is grateful for the availability of counsel on short notice. [ 5 ] In essence, counsel for the Applicant sought to distinguish the case law cited earlier in the day by counsel for the government.

However, it emerged during the conference call a picture somewhat different from what was portrayed in the April 25 letter from counsel for the Applicant. [ 6 ] Furthermore, the context in which this motion for a stay was brought took a different complexion. [ 7 ] The letter was leaving the impression that the explanation for the delay in bringing the motion could be the fact that the underlying Pre-Removal Risk Assessment (PRRA) was made the subject of a leave application for judicial review only recently, on April 5, 2022, with counsel being retained for the stay motion on April 15.

The notification for removal arrangements had come on April 11, 2022, for a removal to occur 15 days later. [ 8 ] In fact, the Court learned that the involvement of counsel ran deeper. The PRRA itself had been offered on September 15, 2021. We learn that a PRRA application was refused on December 14, 2021, " “after a thorough review of the application and evidence before me at the time” " (PRRA officer’s decision of March 24, 2022). That led to requests for reopening the PRRA on February 2 and March 9, 2022; the request was denied on March 12.

Counsel provided more submissions on March 16, and yet more submissions on March 17, 2022. The Senior Immigration Officer granted the request for reconsideration by letter dated March 21, 2022. The new PRRA decision came on March 24, more than one month ago (counsel for Mr. Singh advised that it was received on March 29). The judicial review application, which is in the form of the pro forma application we are now seeing frequently, came the following week on April 5. We now know that all along the same counsel acted for the Applicant. [ 9 ] The Applicant never sought an administrative deferral.

As a matter of law, there is still a valid removal order that has not been challenged. As the Immigration and Refugee Protection Act ( SC 2011, c 27 ) specifies, if the order has come into force and it has not been stayed, it is enforceable. If enforceable, it must be enforced as soon as possible (section 48). The Court or counsel for the government were never advised of any intention to seek a stay, such that there was surprise after the Applicant filed papers electronically late in the evening on Friday night, April 22.

Notice ought to have been given to the other party and this Court’s registry when the Applicant started contemplating bringing a stay motion ( Kanumbi v Canada (Immigration, Refugees and Citizenship) , 2018 FC 336 ). Obviously, nothing was done. [ 10 ] There is no explanation for the delay in bringing the motion for a stay, or even for not advising the Court registry or the other party of such an occurrence.

As my colleague Grammond J wrote in Beros , supra , at para 10 " “when a motion for stay of removal is not brought at the earliest opportunity, the motion should include an explanation for the delay and, if possible, evidence supporting that explanation” " . There was no such explanation in this 440-page record. Pelletier J, then of this Court, wrote in Adel , supra , at para 16 , that " “the Court has a hard time understanding why the application for a stay is tendered on the day before the date of removal or on the very day itself” " .

That is the same in this case. [ 11 ] Here, the record, in spite of its length, does not tell the complete immigration story. Thus, the inadmissibility of the Applicant in Canada and the process to reach that decision is nowhere to be found.

[ 12 ] The Applicant was found guilty of offences, but little is known about them. In fact, what was revealed in the usual process leading to inadmissibility, including a hearing before the Immigration and Refugee Board, is not available. Indeed the circumstances of the Applicant’s arrival in Canada and his immigration status in this country since his arrival are unknown. It seems that he never sought refugee status, but little more has been made available. We know that the Applicant is detained, but we do not know for how long he has been detained, why and what are the reasons for his continued detention.

In a word, not much has been revealed. [ 13 ] In Beros , supra , our Court recalled two important reasons why stay motions brought very late, without warning, could be denied a hearing, in the discretion of the Court: [12] The first reason is that although a risk to the life or security of the applicant may be at issue, the process remains a contradictory one and must be fair to the respondent Minister. Motions for stay of removal raise important and complex issues and deserve careful consideration.

Where there is no valid reason to bring such a motion on the eve of the scheduled removal, it is not fair to ask the respondent to prepare a meaningful response in a very short period of time, in particular during weekends. The respondent may have difficulty assembling the relevant materials and preparing submissions that are tailored to the facts of the case. Moreover, it is not in the interests of justice to ask our Court to decide such motions in a hurried fashion. [13] The second reason is that we should not apply the law in a manner that rewards the strategic delaying of filing a motion for stay of removal.

If we allowed the filing of such motions at the last minute, applicants could file a record that omits certain facts, hoping that the respondent will be unable to find them quickly. They could try to create an atmosphere of urgency and an impression that the risk they face has not been thoroughly assessed. The interests of justice are better served by the timely filing of motions for stay of removal, allowing both parties to provide the Court will all relevant information.

This is echoing nicely the dictum of Pelletier J in Adel , supra : [17] This does not do justice to either the respondent or the Court, both of whom must comply with the applicant's deadlines. The respondent is often unable to file its evidence in Court. The Court, for its part, must determine complex questions on the basis of an incomplete record and without the benefit of any period of reflection. The applicant claims a stay by appealing to fairness; he should grant to others what he is claiming for himself. And in this instance, fairness required that the application be presented earlier.

It is surprising to me that one can have sufficient information to commence an application for leave and judicial review but be in ignorance about an application for a stay. Similarly, in Khan , supra , one reads: [11] This Court has held that it may refuse to hear last-minute stay applications where there is no explanation for the delay in bringing the matter forward. A stay of removal is an extraordinary relief, which should be considered based on the best available evidence, and with time for proper consideration.

That is very similar to the case at bar. [ 14 ] It may not be useless to remind the parties that the existence of a pending judicial review application has been found by the Federal Court of Appeal not to create the kind of situation where a deferral of the removal order is required ( Baron v Canada (Public Safety and Emergency Preparedness) , 2009 FCA 81 , [2010] 2 FCR 311 [ Baron ]; Canada (Public Safety and Emergency Preparedness) v Shpati , 2011 FCA 286 , [2012] 2 FCR 133; El Ouardi , supra ).

In the words of Evans J.A., in Shpati , at para 35 , if deferral were granted, " “deferral would be virtually automatic whenever an individual facing removal had instituted judicial review proceedings in respect of a negative PRRA. This would be tantamount to implying a statutory stay in addition to those expressly prescribed by the IRPA, and would thus be contrary to the statutory scheme” " . [ 15 ] In this case, the Applicant has been represented by the same counsel since the original pre-removal risk assessment application which was offered on September 15, 2021.

It could not have been a surprise that a removal from Canada was an issue. A decision came down on December 14, 2021 after many deadlines, and extensions of time were granted. Indeed, the decision of December 14, 2021 states that " “no supporting submissions have been received by this office as at the date of this decision” " . As alluded earlier, followed numerous attempts for the matter to be reconsidered. It was reconsidered in March 2022, with a decision on March 24. All that time, a removal order was pending.

What is more, a judicial review of the PRRA decision was launched only on April 5 and the stay of execution of the removal order took two weeks after notification to be filed electronically, after regular business hours, literally on the eve of the scheduled removal, with a motion record that appeared to be lacking needed information. [ 16 ] I share the view exposed in Beros , supra , that discretion ought to be exercised with caution. The Court came to the conclusion after deliberation that the discretion needs to be exercised in this case. I have reviewed the record with care.

There was plenty of time to produce a complete record, with submissions in support, well before the eve of the execution of the removal order. There is no explanation for the manner in which this matter was brought to this Court. [ 17 ] As a matter of fact, the submissions run for barely 20 pages and address the very well known tri-partite test for stays and interlocutory remedies. The Court did not hear oral submissions by counsel for the Applicant, nor any submission from Respondent’s counsel on the stay motion.

Thus, I would only note that in matters of this nature the " “serious issue” " threshold is not low, as pointed out by the Applicant. It appears to me that the reasoning in Wang v Canada (Minister of Citizenship and Immigration) , 2001 FCT 148 , [2001] 3 FC 682, applies. The motion judge would consider the likelihood of success in view of the fact that the removal order continues to be valid (see also Baron , supra ). [ 18 ] Similarly, evidence is needed when dealing with irreparable harm.

In Gateway City Church v Canada (National Revenue) , 2013 FCA 126 , Stratas J.A. wrote: [15] General assertions cannot establish irreparable harm. They essentially prove nothing:

It is all too easy for those seeking a stay in a case like this to enumerate problems, call them serious, and then, when describing the harm that might result, to use broad, expressive terms that essentially just assert – not demonstrate to the Court’s satisfaction – that the harm is irreparable. ( Stoney First Nation v. Shotclose , 2011 FCA 232 at paragraph 48 .) Accordingly, “[a]ssumptions, speculations, hypotheticals and arguable assertions, unsupported by evidence, carry no weight”: Glooscap Heritage Society v.

Minister of National Revenue , 2012 FCA 255 at paragraph 31 . [16] Instead, “there must be evidence at a convincing level of particularity that demonstrates a real probability that unavoidable irreparable harm will result unless a stay is granted”: Glooscap , supra at paragraph 31. See also Dywidag Systems International, Canada, Ltd. v. Garford Pty Ltd. , 2010 FCA 232 at paragraph 14 ; Canada (Attorney General) v. Canada (Information Commissioner) , 2001 FCA 25 , 268 N.R. 328 at paragraph 12 ; Laperrière v. D. & A.

MacLeod Company Ltd. , 2010 FCA 84 at paragraph 17 . [ 19 ] The Applicant would have been held to these standards. [ 20 ] As a result, the circumstances of this case, together with an absence of reasons which gives the Court a hard time to understand why the motion for a stay come on the eve of the removal, make it that this constitutes an unacceptable course of conduct. Thus, the Court must exercise its discretion not to hear this motion. ORDER in IMM-3245-22 THE COURT declines to hear the Applicant’s motion for stay of removal.

"Yvan Roy" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-3245-22 STYLE OF CAUSE: HARSIMRAN SINGH v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: HELD BY CONFERENCE CALL DATE OF HEARING: APRIL 26, 2022 JUDGMENT AND REASONS: ROY J. DATED: APRIL 26, 2022 APPEARANCES : Nathaniel Ng-Cornish For The Applicant Zofia Rogowska For The respondent SOLICITORS OF RECORD : Ng-Cornish Law Toronto, Ontario For The Applicant

Attorney General of Canada Toronto, Ontario For The respondent