KIMBER JOSEPH Applicant v. THE MINISTER OF PUBLIC SAFTEY AND EMERGENCY PREPAREDNESS, 2018 FC 827

Date: 20180810 Docket: IMM-3767-18 Citation: 2018 FC 827 Ottawa, Ontario, August 10, 2018 PRESENT: The Honourable Madam Justice Kane BETWEEN: KIMBER JOSEPH Applicant and THE MINISTER OF PUBLIC SAFTEY AND EMERGENCY PREPAREDNESS Respondent ORDER UPON motion on behalf of the Applicant for an Order staying his removal to St.

Lucia scheduled for August 12, 2018, pending thedetermination of his Application for Leave and for Judicial Review of the decision, dated August 6, 2018, of an Inland EnforcementOfficer [the Officer] which refused the Applicant’s request to defer his removal from Canada; AND UPON considering the written and oral submissions of the parties, the decision of the Officer, the provisions of the Immigrationand Refugee Protection Act, SC 2001, c 27 [the Act] and the relevant jurisprudence; AND UPON considering the tripartite test established in Toth v Canada (Minister of Employment and Immigration) (1988), (FCA), 86 NR 302 (FCA), which guides this Court in determining whether the stay should be granted: that there is a serious issueto be tried, that the Applicant would suffer irreparable harm by reason of his removal, and that the balance of convenience lies in hisfavour, and that all three elements of this test must be established; AND UPON noting that in most cases the test to establish a serious issue is relatively low, being neither frivolous or vexatious; however,in determining whether a serious issue exists in a decision to refuse to defer removal, as in the present case, the Court must consider thatthe discretion of the Officer to defer the removal of a person is limited, and that the standard of review of the Officer’s decision is that ofreasonableness; therefore, an applicant must advance a strong case and show a likelihood of success in the underlying applicationbecause the stay, if granted, effectively grants the relief sought in the underlying judicial review application (Wang v Canada (Ministerof Citizenship and Immigration), 2001 FCT 148 , [2001] 3 FC 682 at para 11 and Baron v Canada (Minister of Public Safetyand Emergency Preparedness), 2009 FCA 81 at para 51) [Baron]; AND UPON considering the Applicant’s submissions that a serious issue arises from the Officer’s failure to apply the principlesestablished in Kanthasamy v Canada (Minister of Citizenship and Immigration), 2015 SCC 61, [2015] 3 SCR 909 [Kanthasamy] asadapted to the context of the deferral decision and from the Officer’s failure to consider the impact of the Applicant’s removal fromCanada on his family and on the best interests of the children given that: the Applicant is their sole financial provider; his wife is a stay-at-home mother to their three children; his wife will not be able to provide for the children’s basic needs; he also provides financialsupport to his child born to another woman; and, that separation from his children would also have a significant emotional impact on thechildren given his "“hands–on”" role in their day to day care; AND UPON considering the Applicant’s submissions that irreparable harm will result from his removal because his children will sufferwithout his emotional and financial support, the impact of being separated from him for up two years as his Humanitarian andCompassionate [H&C] application and Temporary Residence Permit [TRP] application are processed will be significant, and that he haslittle prospect of employment in St.

Lucia in order to financially support his family; AND UPON considering the Applicant’s submissions that the balance of convenience favours that he remain in Canada pending thedetermination of his TRP and H&C applications as this flows from the serious issue and irreparable harm alleged and because his H&Capplication may be jeopardized if he is removed; AND UPON considering the Respondent’s submissions including that: the Officer considered all the relevant factors in determiningwhether to exercise his limited discretion to defer the removal of the Applicant; the Applicant has not established a serious issue in thedecision of the Officer; the Federal Court of Appeal has confirmed that the principles established in Kanthasamy apply in the context ofH&C applications and that in requests for deferral of removal a full analysis of the best interests of the children [BIOC] is not required,as that usurps the role of the H&C process (Lewis v Canada ( MPSEP) 2017 FCA 130 [Lewis]); even in a full H&C analysis, the BIOCare not determinative, rather are an important consideration; the Officer did consider the short-term BIOC of the children; and, theOfficer did not ignore the Applicant’s evidence that he was the sole financial provider to his family, but noted that if deported, theApplicant was not precluded from seeking work in St.

Lucia and that the Applicant’s wife would be eligible for various social assistance; AND UPON considering the Respondent’s submissions that the jurisprudence has established that the unfortunate consequences of theApplicant’s deportation for his family do not constitute irreparable harm; and, that the balance of convenience favours the Respondentgiven the duty to respect the provisions of the Act and the public interest.

AND UPON considering that the Officer addressed the Applicant’s submissions and the evidence on the record and correctly noted thathis discretion was limited and that a deferral of removal was meant to address temporary impediments to removal; AND UPON noting that the Officer acknowledged that the Applicant had requested an exemption from the requirements of theImmigration and Refugee Protection Act [the Act] on H&C grounds in November, 2017 and that such applications take approximately 30months to process and, therefore, this decision was not imminent, but would continue to be considered whether or not the Applicant isremoved from Canada; AND UPON noting that the Officer also considered that the Applicant had very recently applied for a TRP also based on hardship,which would continue to be processed whether or not the Applicant is removed from Canada; AND UPON noting that the Officer considered the short-term best interests of the Applicant’s three young children with his wife,acknowledged the active role played by the Applicant, including his financial support, but noted that, as Canadian citizens, the childrenand their mother have access to an array of social services; the Officer acknowledged that the Applicant’s return to St.

Lucia wouldpresent challenges, but also noted that the Applicant had ample notice of his pending removal in which to prepare his family for hisabsence; and, the Officer noted that separation resulting from removal is challenging and difficult, but need not be permanent, addingthat there are other ways to maintain contact; AND UPON noting that although this Court has suggested that the principles in Kanthasamy could provide guidance in the context ofrequests to defer removal with necessary adaptation (Schleicher v Canada (MPSEP) 2017 FC 482 [Schleicher] at para 49), in Lewis, theCourt of Appeal clarified that the Kanthasamy principles were established in the context of the determination of an H&C applicationpursuant to

section 25 of the Act; as a result, these principles will apply to the relevant Officer’s determination of the Applicant’s H&Capplication, but are not binding on the Officer who determines whether to defer removal, although the Officer must consider the short-term best interests of the children; AND UPON noting the decision of Justice Gleason in Lewis, in particular, at para 75, In light of the foregoing, I disagree with Mr. Lewis and the intervener that Kanthasamy requires that a full-blown bestinterests of the child analysis be undertaken before a child’s parent(

s) may be removed from Canada or that such children’sbest interests must outweigh other considerations in the analysis. In my view, the holding in Kanthasamy applies only toH&C decisions made under

section 25 of the IRPA and, even there, does not mandate that the affected children’s bestinterests must necessarily be the priority consideration.

AND UPON finding that in the present case, no serious issue has been established with respect to the Officer’s application of the lawwith respect to the best interests of the children sufficient to meet the elevated threshold for a serious issue in this context; however, theCourt, upon consideration of the Application for Leave and for Judicial Review, may or may not determine that there is a basis uponwhich leave for judicial review should be granted; AND UPON noting that the Applicant’s position is that irreparable harm will result to his children if he is removed as he will not be ableto provide the sole financial support they need or the emotional and day-to-day support they depend on; the Applicant does not appear tosubmit that he will suffer any other irreparable harm by his removal; and, to the extent that the harm to the children occasioned by theApplicant’s removal could establish the "“irreparable harm”" branch of the Toth test, the issue remains whether the Applicant hasestablished that this harm is irreparable; AND UPON noting that the Applicant relied on Gallardo v Canada (Minister of Citizenship and Immigration) 2006 FC 1331 [Gallardo]for the position that irreparable harm need not be to the Applicant but can be to other persons where a link is established; AND UPON noting that in Gallardo at para 39-40, Justice Shore acknowledged that there is jurisprudence which supports the view thatirreparable harm to others can constitute irreparable harm for the purpose of meeting the test for a stay and there is other jurisprudencewhich supports the view that the irreparable harm must be to the particular applicant, however, on the facts of Gallardo, Justice Shorefound that there would be harm to both the Applicant and third parties; AND UPON considering the jurisprudence with respect to irreparable harm, including Baron, at para 69, where the Court of Appealexplained, "“As this Court and the Federal Court have constantly repeated, one of the unfortunate consequences of a removal order ishardship and disruption of family life.

However, that clearly does not constitute irreparable harm. To paraphrase the words of PelletierJ.A. found at paragraph 88 of his ""Reasons in ""Wang"", supra, family hardship is the unfortunate result of a removal order which canbe remedied by readmission if the H&C application is successful.”"; and Melo v Canada (Minister of Citizenship and Immigration),(2000), (FC), 188 F.T.R. 39 at para. 21, where the Court stated, "“If the phrase "irreparable harm" is to retain anymeaning at all, it must refer to some prejudice beyond that which is inherent in the notion of deportation itself.

To be deported is to loseyour job, to be separated from familiar faces and places.

It is accompanied by enforced separation and heartbreak.”"; and, Selliah vCanada (Minister of Citizenship and Immigration), 2004 FCA 261, at para. 13, where the Court of Appeal noted "“Nonetheless, thekinds of hardship typically occasioned by removal cannot, in my view, constitute irreparable harm for the purpose of the ""Toth"" rule,""otherwise stays would have to be granted in most cases, provided only that there is a serious issue to be tried”;" AND UPON finding that regardless of whether irreparable harm to the Applicant’s children who will remain in Canada without thecurrent financial and emotional support of their father if he is removed can constitute irreparable harm for the purpose of meeting theToth test, the Applicant has not established with clear and convincing evidence that irreparable harm will result to his children or to theApplicant between now and the time that the Application for Leave and for Judicial Review of the Officer’s decision is finally disposedof, in the event that the Applicant is removed from Canada; AND UPON considering that in the circumstances, the balance of convenience lies with the Respondent to ensure the obligations of theAct are carried out and, in particular, to execute the statutory duty under

section 48 to enforce the removal order as soon as possible. THIS COURT ORDERS that the application for a stay of the removal order is dismissed.

"Catherine M. Kane" Judge