SHUK CHING WONG Applicant v. THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS, 2021 FC 938

Date: 20210910 Docket: IMM-6033-21 Citation: 2021 FC 938 Ottawa, Ontario, September 10, 2021 PRESENT: Mr. Justice Sébastien Grammond BETWEEN: SHUK CHING WONG Applicant and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondent ORDER AND REASONS [ 1 ] Ms. Wong seeks a stay of her removal to Hong Kong scheduled for September 13, 2021. I am dismissing her motion, because she has not shown that the decision to deny her request for deferral was unreasonable.

The officer who denied her request reasonably considered that her spousal sponsorship application was not timely and that it was not their role to review broader humanitarian and compassionate considerations. I. Background [ 2 ] Ms. Wong is a citizen of Hong Kong. She came to Canada in 2009 and claimed refugee status. In 2011, her claim was denied and an application for leave and judicial review was also denied. [ 3 ] Ms. Wong states that upon arriving in Canada, she met Mr. Xia and developed an intimate relationship with him. They began cohabiting in April 2011 and were married in August 2011. [ 4 ] Mr.

Xia is a refugee. He sought to add Ms. Wong and her daughter as dependents on his application for permanent residence. In August 2019, however, this was refused, as the officer found that the relationship between Ms. Wong and Mr. Xia was not genuine and was entered into for the purpose of acquiring status under the Immigration and Refugee Protection Act , SC 2001, c 27 [the Act ]. Nevertheless, Mr. Xia was granted permanent residence. [ 5 ] In October 2019, Ms. Wong attended a pre-removal interview and was given the opportunity to apply for a pre-removal risk assessment [PRRA].

Her PRRA application was denied in November 2020. [ 6 ] Meanwhile, Ms. Wong submitted two applications based on humanitarian and compassionate [H&C] grounds, the first one in September 2019, the second one in November 2019. Although the decisions are not in the record, it appears that the first application was never processed and the second one was refused in September 2020. [ 7 ] In February 2020, Ms. Xia submitted an application to sponsor Ms. Wong and her daughter. However, the application was returned in October 2020, because Ms.

Wong’s daughter had turned 18 years old and additional forms needed to be completed. The application was submitted again in November 2020. No decision has been made on this application. [ 8 ] In July 2021, Ms. Wong was directed to report for removal. Her removal was deferred to allow her to receive a second dose of COVID-19 vaccine. Her removal is now scheduled for September 13, 2021. [ 9 ] On August 27, 2021, Ms. Wong requested a further deferral of her removal, based on her outstanding sponsorship application, her establishment in Canada and hardship upon return to Hong Kong. On September 2, 2021, Ms.

Wong’s request was denied. The officer first noted that Ms. Wong was already " “removal ready” " when her husband filed the last application to sponsor her and that the decision on that application was neither imminent nor overdue. With respect to factors related to the consequences of removal, the officer quoted at length from the H&C and PRRA decisions and concluded that there was insufficient evidence of any risk that could justify deferral. [ 10 ] Ms. Wong applied for leave and judicial review of the officer’s negative decision. He also brought a motion for stay of removal. II.

Analysis [ 11 ] In Gill v Canada (Public Safety and Emergency Preparedness) , 2020 FC 1075 [ Gill ], I reviewed the legal framework governing requests for deferral and motions for stay of removal. I refer the reader to that case and I will not repeat the discussion here.

In a nutshell, the applicant must show (1) that the underlying application for judicial review shows " “quite a strong case;” " (2) that the applicant’s removal would cause irreparable harm; and (3) that the balance of convenience favours the applicant. [ 12 ] In Toney v Canada (Public Safety and Emergency Preparedness) , 2019 FC 1018 , my colleague Justice Elizabeth Walker reviewed the circumstances in which a pending H&C or spousal sponsorship application may justify deferring removal. In particular, she stated, at paragraph 50:

The existence of an outstanding H&C or spousal application in Canada is not a bar to removal absent special considerations. Both the timeliness of filing and the imminence of any decision on the application are important considerations for an officer […]. [ 13 ] Thus, to justify deferral, a pending application must be timely and a decision must be imminent. These requirements are intended to ensure that such applications are not brought simply as a last-minute attempt to prevent removal for an indefinite period. [ 14 ] Ms.

Wong’s main argument is that a decision on the spousal sponsorship application is imminent, as the average treatment time is 12 months and 10 months have already elapsed. She adds that the application will most likely be successful and suggests that the rejection of the previous application was due to the fact that she and her husband were self-represented. Thus, the officer’s decision would be unreasonable. [ 15 ] This, however, overlooks the fact that Ms. Wong’s spousal sponsorship application was made after she was given notice that she would be removed. Thus, the application is not timely.

Although the record is slim on the issue, the same appears to be true of the H&C application. In the deferral decision, the officer described this by using the expression " “removal ready.” " I fail to see anything unreasonable in the officer’s decision in this regard. [ 16 ] I would also add that there is little evidence to explain why the outcome of the current spousal sponsorship application would be different from that of Mr. Xia’s permanent residence application, in which it was determined that the marriage was not genuine. In her affidavit filed in support of the deferral request, Ms.

Wong does not provide any explanation with respect to the lack of legal representation or the reasons explaining the negative outcome. Counsel’s statements at the hearing cannot make up for this lack of evidence. Likewise, there is no explanation why Ms. Wong did not appeal or seek judicial review of the refusal of the permanent residence application, nor any indication of whether the genuineness of their marriage was argued in the H&C application and how the agent dealt with this. Overall, nothing shows that the officer’s decision was unreasonable. [ 17 ] Ms.

Wong also argues that the officer should have considered H&C grounds, including family separation, Ms. Wong’s establishment in Canada and her lack of family in Hong Kong. However, a deferral request must be based on short-term issues: Gill , at paragraph 18 . In Lewis v Canada (Public Safety and Emergency Preparedness) , 2017 FCA 130 at paragraph 58 , [2018] 2 FCR 229, the Federal Court of Appeal stated that the officer may only consider the " “short-term best interests of children,” " rather than perform a full- blown analysis of their best interests. The same logic applies to H&C grounds.

A request for deferral is not a forum to reargue H&C considerations. Only short-term issues such as impending births or deaths, a person’s fitness to fly or similar considerations may be taken into account. Ms. Wong has not put forward any grounds of that nature. [ 18 ] Ms. Wong has therefore not shown " “quite a strong case” " that the deferral officer’s decision is unreasonable. It is not necessary to analyze the other components of the test for a stay of removal. Her motion for a stay will be dismissed. ORDER in IMM-6033-21 THIS COURT ORDERS that the motion for a stay of removal is dismissed.

"Sébastien Grammond" Judge FEDERAL COURT SOLICITORS OF RECORD Docket: IMM-6033-21 STYLE OF CAUSE: SHUK CHING WONG v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: BY VIDEOCONFERENCE DATE OF HEARING: September 10, 2021 ORDER AND REASONS: GRAMMOND J. DATED: September 10, 2021 APPEARANCES : Vakkas Bilsin For The Applicant Sally Thomas For The Respondent SOLICITORS OF RECORD :

Lewis & Associates Barristers and Solicitors Toronto, Ontario For The Applicant Attorney General of Canada Ottawa, Ontario For The Respondent