2022 FC, 2022 FC 1011

Date: 20220708 Docket: IMM-6335-22 Citation: 2022 FC 1011 Ottawa, Ontario, July 8, 2022 PRESENT: The Honourable Mr. Justice Roy BETWEEN: GURPREET SINGH GILLApplicantandTHE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESSRespondent ORDER AND REASONS [1] The Applicant, Gurpreet Singh Gill, comes to this Court in extremis to avoid his deportation to India scheduled for July 11, 2022, at8:45 a.m., Edmonton Time. He has been advised of the date of his removal from Canada on June 14, 2022.

It appears from his affidavitof July 6 (paras 3 and 9) that he immediately retained counsel, yet there is no explanation for seeking from the Court a deferral of theexecution of the removal order as late as July 7, 2022. [2] Counsel for the Minister of Public Safety and Emergency Preparedness complains bitterly about the unexplained lateness of thismotion. She asks that the Court decline to hear the matter and dismiss the motion. There exists ample support for that proposition.Counsel refers to Kawomera v Canada (Citizenship and Immigration), IMM-1115-21.

She also quotes from Matadeen v Canada(Minister of Citizenship and Immigration), IMM-3164-00. There are many other decisions in this Court as well as the Federal Court ofAppeal: the decision in Berios v Canada (Citizenship and Immigration), 2019 FC 325 is one that summarizes the considerations to beweighed. [3] Counsel for the Minister also claims that the Applicant comes to Court without clean hands. [4] I prefer to deal with the matter on its merits.

This motion is to be dismissed as, on its face, it does not challenge a decision and none ofthe three elements of the tri-partite test a Court applies in order to stay judicially the execution of a removal order is present. [5] First, the Applicant is mistaken that the notice of June 14, 2022 constitutes an order of removal. Indeed, on its face, it merelyconstitutes the enforcement of a removal order that exists and has been enforceable.

The application for leave and judicial review tocommence proceedings against a notice cannot be successful: the Inland Enforcement Officer did not issue a removal order, contrary towhat is asserted. He merely executes the order. Paragraph 12 of this Court’s decision in Lion v Canada (Public Safety and EmergencyPreparedness), 2019 FC 77 captures the state of the law: [12] Mr. Lion’s motion for a stay of removal fails on the first prong of the test. Mr. Lion’s underlying application is forjudicial review of his departure order.

As I mentioned above, a departure order is typically issued as a matter of course whensomeone claims refugee status. It flows mechanically from the provisions of the Act and Regulations. No discretion isexercised and no detailed review of the situation is made. Save in exceptional circumstances, the issuance of a departureorder does not raise issues that are amenable to judicial review. I fail to see any reason why the order made against Mr. Lionwould be invalid. In any event, an application for judicial review against the order was not made within the 15-day timelimit prescribed by

section 72 of the Act and Mr. Lion did not ask for an extension of time. [6] Second, the tri-partite test (Toth v Canada (Minister of Employment and Immigration), (1988) (FCA), 86 NR 302)calls for an applicant to satisfy three criteria: 1) there must be a serious issue to be determined in the underlying judicial application; 2)there must be irreparable harm that will ensue if the stay is not granted and 3) the balance of convenience must favour the applicant.

Thetest is conjunctive, which means that the three criteria must be satisfied for the stay to be granted. [7] In the case at hand, the matter of "“serious issue”" is defective on two fronts. The application for authorization and judicial review ismade about a notice to appear, which is not the removal order. It is simply a direction to report for removal.

Thus, there is no underlyingjudicial review and, obviously, there cannot be a serious issue to be determined as is required to satisfy the first criterion. [8] Assuming that there could be a serious issue about such notice, there is nothing in this record to contend that the notice would besomehow defective. In other words, the Applicant does not even state an issue about the notice.

According to the case law, where a stayof execution of a removal order is sought, the applicant is held to a higher standard than "“frivolous or vexatious”": the "“test of seriousissue becomes the likelihood of success on the underlying application…”" (Wang v Canada (Minister of Citizenship and Immigration),2001 CFPI 148, [2001] 3 FC 682 at paras 10-11). That is not present here. There is no issue raised, let alone one that would have somelikelihood of success about the validity of the instrument. That suffices to dispose of the motion. [9] The other two criteria are also defective.

The irreparable harm criterion suffers from a complete lack of evidence while the balance ofconvenience is certainly not limited to the Minister being inconvenienced, as suggested by counsel for the Applicant. On the contrary,there is a significant public interest in the enforcement of the immigration laws of this country for the maintenance of public confidencein the immigration system. Moreover, Parliament instructs the Minister to enforce removal orders “as soon as possible” (section 48(2) of

the Immigration and Refugee Protection Act , SC 2001, c 27 ). [ 10 ] It follows that the motion for a stay of the execution of the removal order must be dismissed. ORDER in IMM-6335-22 THIS COURT ORDERS: 1 . The motion for a stay of the execution of the removal order is dismissed. "Yvan Roy" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-6335-22 STYLE OF CAUSE: GURPREET SINGH GILL v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: HELD BY TELECONFERENCE DATE OF HEARING: JULY 8, 2022 ORDER AND REASONS: ROY J.

DATED: JULY 8, 2022 APPEARANCES : Richa Chhabra For The Applicant Maria Green For The respondent SOLICITORS OF RECORD : Ace Law Group Edmonton, Alberta For The Applicant Attorney General of Canada Edmonton, Alberta For The respondent