2018 FC, 2018 FC 1259

Date: 20181212 Docket: IMM-5991-18 Citation: 2018 FC 1259 Toronto, Ontario, December 12, 2018 PRESENT: The Honourable Madam Justice Walker BETWEEN: GRAHAM WILLIAM WELLS Applicant and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondent ORDER AND REASONS [ 1 ] The Applicant, Graham William Wells, seeks a stay of his removal from Canada to the United Kingdom, currently scheduled for December 13, 2018. He received a Direction to Report on November 14, 2018 and sought a deferral of his removal by filing a request with the Canada Border Services Agency (CBSA) on November 23, 2018.

The Applicant requested a response from CBSA by December 3, 2018 in view of the urgency of the matter. Having received no decision, he filed an application for judicial review of the anticipated refusal to defer his removal, and a notice of motion and motion record seeking a stay of removal, in this Court on December 5, 2018. [ 2 ] CBSA issued a decision (Decision) denying the Applicant’s deferral request on December 10, 2018. I heard the Applicant’s motion for a stay of his removal on December 11, 2018 in Toronto. The following are my reasons for dismissing the motion. I.

Background [ 3 ] By way of brief factual background, the Applicant is a citizen of the United Kingdom who entered Canada on January 24, 2011. He stayed in Canada after the expiry of his two week visitor status in order to remain with a woman he had met during a prior visit to Canada. The Applicant and Ms. Robb moved in together in September 2011 and have been living in a common-law relationship since that time. They now have three children. [ 4 ] The Applicant acknowledges that he has been aware of his irregular immigration status in Canada since 2011.

He states that he did not know how to regularize his status and was unable to seek legal advice due to limited funds. The Applicant is the primary caregiver to his three children as he is unable to work legally in Canada. Ms. Robb has begun to work outside the home. [ 5 ] The Applicant was arrested by CBSA in April 2016 at his home as he had overstayed his visitor status and was considered a flight risk.

Following his release from detention in May 2016, the Applicant has reported weekly to the Kitchener, Ontario CBSA office. [ 6 ] As a result of his arrest in 2016, the Applicant was connected with an immigration consultant who advised that he may be eligible to obtain permanent resident status in Canada on humanitarian and compassionate (H&

C) grounds. On May 9, 2018, the Applicant submitted an application for permanent residence on H&C grounds to Citizenship and Immigration Canada. No decision has yet been rendered on the Applicant’s H&C application. II. The Decision [ 7 ] In the Decision, a CBSA enforcement officer (Officer) reviewed the factual and procedural history of this matter. The Officer stated that the Applicant’s pending H&C application would not delay his removal from Canada and, further, that the application would be processed after any removal. The Officer noted that the processing of H&C applications in Canada could take 31 months.

The Officer discounted the Applicant’s statistical information regarding H&C applications processed after removal, finding them speculative in nature. [ 8 ] The Officer noted that it was beyond his authority to perform an H&C evaluation but considered the specific arguments brought forth in the deferral request, bearing in mind that a deferral was intended to address temporary or practical impediments to removal. The Officer focused on the best interests of the children (BIOC) and hardship to the Applicant himself. The Officer concluded that neither of these considerations warranted a deferral of removal.

With respect to the best interests of the Applicant’s three young children, the Officer acknowledged the Applicant’s significant involvement in the children’s lives, noting that the Applicant prepares breakfast for them, helps with dressing up, plays with the children and performs parenting tasks. The Officer also considered documentation submitted to him regarding the development of children without their father.

The Officer noted, however, that the children will remain in Canada with their mother which may attenuate their period of adjustment notwithstanding the separation of the family. [ 9 ] The Officer was sympathetic to the Applicant’s personal circumstances and those of his family but noted that the Applicant was familiar with the United Kingdom as his place of residence for most of his life, knowing the language, customs and culture of the UK. The Officer also noted that the Applicant was gainfully employed in the UK in his father’s business before his arrival in Canada. There

was no evidence before the Officer that the Applicant could not support his Canadian family financially from the UK. III. Analysis [10] A stay is an exceptional, equitable remedy. The statutory basis for a stay of removal is found in

section 18.2 of the Federal CourtsAct, RSC 1985, c F-7, which provides that this Court may make interim orders pending the final disposition of an application for judicialreview. In considering a request for a stay, the Court applies the same test as for interlocutory injunctions.

The Supreme Court of Canada(SCC) recently restated the test as follows: At the first stage, the application judge is to undertake a preliminary investigation of the merits to decide whether theapplicant demonstrates a “serious question to be tried”, in the sense that the application is neither frivolous nor vexatious.The applicant must then, at the second stage, convince the court that it will suffer irreparable harm if an injunction isrefused.

Finally, the third stage of the test requires an assessment of the balance of convenience, in order to identify the partywhich would suffer greater harm from the granting or refusal of the interlocutory injunction, pending a decision on themerits. (R v Canadian Broadcasting Corp, 2018 SCC 5 at para 12 (CBC) references omitted.) [11] This three-pronged test is well-known. It was set out in earlier decisions of the SCC (Manitoba (Attorney General) v MetropolitanStores Ltd, (SCC), [1987] 1 SCR 110; RJR — MacDonald Inc v Canada (Attorney General), (SCC),[1994] 1 SCR 311 (RJR)).

The test has been applied in the immigration context in Toth v Canada (Employment and Immigration), (FCA) and in many subsequent decisions of this Court. The test is conjunctive, meaning that an applicant must satisfy allthree elements. The application of the test in each case is highly contextual and fact-dependent. A. Serious Issue [12] In many cases, the serious issue branch of the test is not a high threshold.

However, in cases where the stay is requested following arefusal to defer removal, as in the present case, a higher threshold applies as the interim relief sought has the practical effect of decidingthe underlying action. When an application for judicial review is filed against an enforcement officer’s decision not to postpone removal,a motion for a stay of the removal gives the applicant what he or she asked for in the original deferral request.

As a result, the FederalCourt of Appeal (FCA) has stated that an applicant must demonstrate a “likelihood of success” or “quite a strong case” in regard to theunderlying application for leave and judicial review (Wang v Canada (Citizenship and Immigration), 2001 FCT 148, [2001] 3 FC 682;Baron v Canada (Public Safety and Emergency Preparedness), 2009 FCA 81, [2010] 2 FCR 311 at para 67 (Baron)). [13] The Applicant submits that, in addition to issues arising from the Decision, serious issues are raised in the general circumstances ofhis case, in particular whether

section 7 of the Canadian Charter of Rights and Freedoms (Charter) requires that he not be removed untilhis H&C application has been determined and whether, in light of the fact that his H&C application will likely be determined in the next2 to 4 months, deferral should be granted.

The Applicant also relies on the principles of fairness to argue that removal should not becarried out prior to a full and fair consideration of his compelling personal circumstances. [14] With respect to the Decision itself, the Applicant argues that the Officer fettered his or her discretion and ignored or misconstruedevidence relating to BIOC considerations; ignored the Applicant’s statistical evidence; and exceeded his or her jurisdiction by assessingthe Applicant’s H&C application on its merits.

The Applicant relies on the case of Huang v Canada (Public Safety and EmergencyPreparedness), 2018 FC 446, to state that the best interests of his children have not been adequately canvassed in the Decision. [15] The scope of the discretion of a CBSA enforcement officer to defer a valid removal order has been recently and thoroughlycanvassed both by the FCA in Lewis v Canada (Public Safety and Emergency Preparedness), 2017 FCA 130 (Lewis), and by this Courtin Forde v Canada (Public Safety and Emergency Preparedness), 2018 FC 1029 (Forde).

The two cases establish that the discretion ofan enforcement officer in considering a deferral request is very limited and is focused on short-term considerations (Lewis at para 54;Forde at para 36). Further, the existence of an undecided H&C application is not a bar to removal of a person from Canada even wherethe person has children in Canada who may suffer adverse consequences as a result of separation from the removed parent (Lewis atparas 56 – 57; Forde at para 35).

In Lewis, Justice Gleason stated (at paras 56 and 57): [56] This Court went on to accept the Federal Court’s further holding in Simoes that “the mere existence of an H&Capplication [does] not constitute a bar to the execution of a valid removal order” and that “an enforcement officer [is] notrequired to undertake a substantive review of the children’s best interests before executing a removal order” (Baron at para.50).

Nor does the fact that the individual being removed is the parent of a Canadian-born child that may accompany theparent back to the country of origin justify deferral; this was precisely the situation in Baron and, indeed, is often the casefor those who have remained in Canada while their immigration applications are being processed. [57] Thus, under this well-established line of authority, the mere fact that an H&C application has been made shortly beforethe removal date by those subject to being removed or the fact that they might take their Canadian-born children with themwhen they are removed from Canada does not mean that a deferral under

section 48 of the IRPA is warranted. Nor is anenforcement officer entitled to engage in a full-blown analysis of the best interests of such children as so doing would usurpthe function of H&C officers under

section 25 of the IRPA. [16] The Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA) does not provide for a stay of removal pending an H&Capplication absent special circumstances. An enforcement officer’s discretion in determining whether to defer removal is limited and,while he or she must consider the best interests of any children affected by the removal, such consideration is made within the limiteddiscretion of the officer (Crawford v Canada (Public Safety and Emergency Preparedness), 2017 FC 743 at para 37 (Crawford); Lewisat paras 57, 59, 82). The deferral process does not engage a full-blown BIOC review. As stated in Lewis (at para 82), the Officer was

only required to consider the short-term best interests of the children. The question, therefore, is whether the Officer did so. [ 17 ] The Applicant cited numerous cases in oral argument in support of his position that the best interests of his children were not appropriately taken into account. I have reviewed those cases and find that they are not persuasive.

In each of those cases ( Ramada v Canada (Solicitor General) , 2005 FC 1112 ( Ramada ); Kahn v Canada (Public Safety and Emergency Preparedness), 2005 FC 1107 ( Kahn ); Mauricette v Canada (Public Safety and Emergency Preparedness), 2008 FC 420 ( Mauricette ); Order of Justice Kane in Clare v Canada (Citizenship and Immigration) , IMM-3164-16 (2016)), the Court assessed a factual situation in which the children in question had significant, documented medical issues which would be immediately impacted by the removal.

In Ramada and Mauricette , the children were to have accompanied the removed parent to a country in which there were serious questions regarding the availability of medical assistance. In Kahn , a case in which the father was the primary caregiver to the children, the determinative factor for the Court was his care of a daughter with a significant brain injury.

In my view, each of the cases involved special and compelling circumstances of the type referred to by Justice Gleason as relevant, short term issues to be taken into account by an enforcement officer ( Lewis at para 83 ; see also Forde at paras 40, 43 ). [ 18 ] The Applicant’s arguments regarding the application of

section 7 of the Charter are addressed in paragraphs 63 and 64 of the FCA’s decision in Lewis . The Applicant also raises the potential loss of his H&C application as a serious issue.

However, the H&C application will be processed on its merits and I do not find the Applicant’s statistical arguments persuasive ( Barco v Canada (Public Safety and Emergency Preparedness ), 2018 FC 421 at para 26 ). [ 19 ] There is no doubt that family separation is a very difficult experience for all members of the family but it is one of the inherent consequences of deportation ( Crawford at para 30 ) and does not itself constitute special circumstances ( Gonzalez v Canada (Public Safety and Emergency Preparedness), 2014 FC 1178 at para 23 ).

In the present case, the Applicant has not raised specific, short-term considerations that were ignored by the Officer. The Officer considered the Applicant’s role in the family and the fact that the children would be remaining in Canada with their mother. I find that the Applicant has not demonstrated a likelihood of success in his application for judicial review of the Decision. As a result, he has not satisfied the first element of the test for a stay of removal. B. Irreparable Harm [ 20 ] The Applicant has not established the first part of the test for a stay and, therefore, his motion will be dismissed.

I note that his arguments regarding the issue of irreparable harm mirror to a large degree his arguments regarding a serious issue with the Decision itself and that I have addressed a number of these arguments above in this Order. C. Balance of Convenience [ 21 ] The last element of the three-part test is the balance of convenience. Prejudice to the applicant must be balanced against prejudice to the respondent who is seeking to enforce the law. Canada has an important interest in maintaining the integrity of the immigration system, notably the requirement in

section 48 of the IRPA to enforce removal orders as soon as is reasonably possible. In the present case, I find that the balance of convenience favours the Respondent and the maintenance of the integrity of the immigration system, particularly as the Applicant’s H&C application will be considered in due course. ORDER in IMM-5991-18 THIS COURT ORDERS that the motion is dismissed. “Elizabeth Walker” Judge FEDERAL COURT SOLICITORS OF RECORD Docket: IMM-5991-18 STYLE OF CAUSE: GRAHAM WILLIAM WELLS v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: toronto, ontario DATE OF HEARING: december 11, 2018

ORDER AND REASONS: WALKER J. DATED: December 12, 2018 APPEARANCES : Caitlin Maxwell Janet McGill For The Applicant Kareena R. Wilding For The Respondent SOLICITORS OF RECORD : Equity Legal LLP Toronto, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent