2022 FC, 2022 FC 1332

Date: 20220923 Docket: IMM-8402-22 Citation: 2022 FC 1332 Vancouver, British Columbia, September 23, 2022 PRESENT: The Honourable Mr. Justice Pentney BETWEEN: GURPREET SINGH WARRING Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent ORDER AND REASONS [ 1 ] The Applicant, Gurpreet Singh Warring, seeks a stay of his removal to India, which is scheduled for September 26, 2022. [ 2 ] The Applicant arrived in Canada in 2005 with his family, having been sponsored under the family class by one of his sisters. He was 17 years of age when he arrived.

In 2009, he sponsored his first wife to come to Canada, but that relationship subsequently ended. [ 3 ] In 2011, the Applicant was charged with two counts of trafficking heroin under the Controlled Drugs and Substances Act , S.C. 1996, c. 19 . The Applicant was convicted in August 2015, and was sentenced to three years in prison. He says that he was a model prisoner, and that he successfully completed programs for addictions while in prison. He says that he no longer uses drugs or alcohol.

In December 2020, the Applicant married again, and the couple’s daughter was born on December 25, 2021. [ 4 ] Following the convictions, the Canada Border Services Agency (CBSA) prepared an inadmissibility report under subsection 44(1) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 [ IRPA ] recommending that the Applicant be declared inadmissible for serious criminality. The CBSA then prepared a report under subsection 44(2) of IRPA recommending that the Applicant’s case proceed to an Admissibility Hearing before the Immigration and Refugee Board.

The Applicant sought to commence an application for judicial review to overturn this decision but the Court denied leave. [ 5 ] In June 2019, the Immigration Division of the IRB found the Applicant to be inadmissible for serious criminality under paragraph 36(1) (

a) of IRPA . The Applicant has been the subject of a Deportation Order since July 2019. [ 6 ] The Applicant submitted an application for a Pre-Removal Risk Assessment in January 2020, which was denied in February 2021. The negative decision was delivered to the Applicant in May 2021 during a removal interview. The Applicant submitted an application for Humanitarian and Compassionate (H&

C) relief under

section 25 of IRPA on June 15, 2021. No decision has been made on this request. [ 7 ] On March 30, 2022, the Applicant submitted a request for an administrative deferral of his removal, but it was not considered at that time because no departure date had been set. In August 2022, the Applicant was advised that his removal was scheduled for September 14, 2022, which was subsequently delayed until September 26, 2022.

The setting of a removal date activated the request for an administrative deferral and, on September 7, 2022, this request was denied. [ 8 ] The Applicant filed an application for leave and judicial review relating to his H&C application on August 29, 2022. The Applicant seeks “a declaratory judgment regarding his Charter rights and a Mandamus ordering the Respondent to provide an answer to the (A)pplicant’s application for permanent residence or a Temporary Residence Permit filed on or around May 31, 2021”.

The Applicant also explains: The (A)pplicant seeks a declaratory judgment to proclaim the necessity of a decision on the risk of return and his humanitarian application for temporary or permanent residence in Canada before any removal from Canada and an order under

Section 24 of the Charter that the (A)pplicant not be deported without a motivated judgment on these fundamental rights. We wish to be extremely clear that the declaratory judgment on the Charter Rights is our principal recourse and the mandamus to take a decision is our second ancillary recourse. [ 9 ] On August 30, 2022, the Applicant filed his motion for a stay of removal.

His motion is largely based on the hardships associated with being separated from his family, who are emotionally and financially dependent upon him (including his parents, because his father is no longer able to work after being diagnosed with cancer); he also points to risks associated with his return to India – a country he has not lived in for approximately half of his life, and where he has no immediate family or other contacts, and where sectarian violence against Sikhs is on the rise. [ 10 ] It appears that the Applicant filed a second Application for Leave and Judicial review of the decision denying his deferral request on September 16, 2022.

There may have been some issues with the filing and service of the Application, but in any event, it was only brought to the attention of the Court shortly before the hearing, and it was not clear whether the material had been served on the Respondent. [ 11 ] At the hearing, the Applicant indicated that he wished to rely on both Applications for Leave and Judicial Review in support of his

stay motion. Although he did not file any further written submissions to elaborate on his claim relating to the deferral decision, he didaddress this in his oral submissions. The Applicant’s challenge to the deferral decision focuses mainly on the impact of removal on thefamily, arguing that the decision does not respect Canada’s obligations under the Charter of Rights and Freedoms [the Charter] orinternational human rights treaties that prohibit the separation of families without serious issues relating to public order or the safety ofthe public.

The Applicant submits that the deferral decision fails to reflect these considerations. [12] In view of the late notice that the deferral decision was going to be challenged and then relied on in support of the stay, theRespondent was granted further time to file supplementary written submissions to respond to the Applicant’s arguments on the deferraldecision.

The parties’ submissions are considered below. [13] It should be noted that after receiving the Respondent’s further submissions, the Applicant submitted letters complaining ofprocedural unfairness because, in his view, the Respondent was given “two kicks at the can.” I do not accept that there has been anyunfairness to the Applicant. He filed a second Application for Leave and Judicial Review, which was brought to the attention of theCourt and the Respondent shortly before the hearing.

He was granted the opportunity to make submissions on this as it relates to his staymotion, and the Respondent was simply granted a short period to make further submissions on that issue.

I note that the Respondent’ssubmissions do not repeat the arguments on the first judicial review, but properly focus on the challenge to the deferral decision(although, as noted below, there is significant overlap between the Applicant’s arguments in the two matters). [14] The only issue in this proceeding is whether to grant an order staying the Applicant’s scheduled removal from Canada, pending afinal determination on the two Applications for Leave and Judicial Review. [15] In assessing whether to grant a stay, the Court is to apply the three-part test for interlocutory injunctions and other similar relief.This test was recently summarized by the Supreme Court of Canada in R v Canadian Broadcasting Corp, 2018 SCC 5 at paragraph 12[CBC]: At the first stage, the application judge is to undertake a preliminary investigation of the merits to decide whether the applicantdemonstrates 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 is refused. Finally, the third stage of the testrequires an assessment of the balance of convenience, in order to identify the party which would suffer greater harm from the granting orrefusal of the interlocutory injunction, pending a decision on the merits. (citations omitted) [16] The three parts of the test are conjunctive, so that strength in one factor may overcome weakness on another (Monsanto v Canada(Health), 2020 FC 1053 at para 50).

It is important to remember that an interlocutory order, like a stay of removal, is a form of equitablerelief and a degree of flexibility must be maintained in order to ensure relief is available when needed in light of the overallcircumstances of the case. As the Supreme Court of Canada recently stated, in Google Inc v Equustek Solutions Inc., 2017 SCC 34 atpara 1, “[u]ltimately, the question is whether granting the injunction would be just and equitable in all the circumstances of the case.” A.

Serious Issue [17] In most cases, a claimant only needs to show that the underlying claim is not frivolous or vexatious. This standard applies to theH&C decision challenge. However, regarding the deferral decision, the Applicant must demonstrate a “likelihood of success” or “quite astrong case” (Wang v Canada (Minister of Citizenship and Immigration), 2001 FCT 148 , [2001] 3 FC 682; Baron v Canada(Minister of Public Safety and Emergency Preparedness), 2009 FCA 81 [Baron] at para 67; Lewis v Canada (Public Safety and Emergency Preparedness), 2017 FCA 130 [Lewis] at para 43).

In CBC, the Supreme Court of Canadasaid that the Applicant must demonstrate “a strong prima facie case that [he] will succeed at trial” which entails “a strong likelihood onthe law and the evidence presented that, at trial, the applicant will be ultimately successful…” (para 18). [18] The onus is on the Applicant to demonstrate that his underlying applications for judicial review raise a serious issue. Bothapplications will be discussed separately, given that a different threshold applies to each.

(1) The H&C Claim [19] As noted above, this application rests on two grounds; the Applicant asks for declaratory relief under the Charter and in thealternative seeks an order of mandamus forcing the Respondent to make a decision on his H&C application. [20] The Charter claim is described at a level of generality, but in essence it boils down to a claim that removing the Applicant before hereceives a decision on his H&C application constitutes a violation of his Charter rights (presumably his

section 7 rights to “life, libertyand the security of the person” although this is not specified). The Applicant also argues that the nature and scope of his rights must beunderstood against the backdrop of Canada’s international obligations, in particular the right to non-interference with family life.

Hesubmits that there is a long line of Canadian cases showing that international instruments must be considered when examining rights inthe immigration and refugee context. [21] The mandamus request is more straightforward: the Applicant claims he filed his H&C application in a timely fashion (meaning itwas not a last-minute procedural gambit to delay his removal), and the Minister is under a statutory duty to render a decision. [22] The Respondent submits that the Applicant has failed to show a serious issue.

On the mandamus request, the Respondent notes thatsuch relief is only available where the delay in rendering a decision has been unreasonable, which is usually expressed as a requirementthat “(t)he delay in question has been longer than the nature of the process required, prima facie…” (Conille v Canada (Minister ofCitizenship and Immigration), (FC), [1999] 2 FC 33 (T.D.) at para 23). [23] The Respondent points out that the current average time for processing H&C requests (as posted on their website) is 20 months, and because the Applicant filed his H&C request on June 15, 2021, the 20-month period willnot expire until February 2023.

The Respondent notes that this processing time is stated to be a minimum, and the website makes clear

that cases that are more complex may take longer. Since the Applicant is inadmissible for serious criminality, his case is likely to bemore complex than others, and so the processing may take longer. [24] In light of this, and in the absence of any other special circumstance warranting consideration of a mandamus order, the Respondentsubmits that the Applicant’s motion should be dismissed because it is premature and a waste of court resources.

The Respondent alsoargues that the stay motion fails to raise any justiciable issue, and thus amounts to an abuse of process. [25] On the Charter claim, the Respondent asserts that the Applicant’s Charter rights have been respected because he has had access toproceedings before the ID, as well as a PRRA, a deferral request, and now a stay hearing. The Respondent says that the Charter claimmust be examined in light of the various elements of the refugee determination system, and theSupreme Court has made it clear that

section 7 Charter rights are not triggered by the removal of a non-citizen from Canada, citingMedovarski v Canada (Minister of Citizenship and Immigration), 2005 SCC 51 , [2005] 2 SCR 539; 2005 SCC 51[Medovarski]. [26] Having reviewed the materials and considered the parties’ submissions, I am not persuaded that the Applicant has demonstrated thathis challenge relating to the H&C raises a serious issue. [27] While mandamus is clearly available where the processing of an application has been unduly delayed, the Applicant’s case does notfall into that category.

Several factors are important in assessing this aspect of the claim. While the Applicant’s request is not a “last-minute” delay tactic, he did not file at the earliest opportunity – on this I note that he has been subject to a Deportation Order sinceJuly 2019, but his H&C claim was only filed in June 2021. Second, while it is accepted that a decision’s “imminence” is a relevant factorthat may lead to a stay of removal being granted, it is not obvious that this applies to the Applicant’s situation.

At the earliest, a decisionon his H&C request is 5-6 months away, and given the fact that he is inadmissible for serious criminality, the processing may well takelonger. Based on all of these considerations, I find that the Applicant has not demonstrated a serious issue regarding the mandamusrequest. [28] Turning to the Charter claim, the case law establishes a number of propositions that must guide the assessment of this aspect.

First,it is long-accepted that the mere filing of an H&C request is not, in itself, a bar to an individual’s removal (see, for example Baron, atpara 50; Ledshumanan v Canada (Public Safety and Emergency Preparedness), 2021 FC 1463 [Ledshumanan] para 46).

Second, inassessing a Charter claim regarding a particular procedure or process in the area of immigration or refugee protection, the Court mustexamine the claim in the context of the process as a whole, including the various opportunities for a claimant to have their interestsconsidered (see, for example: Kreishan v Canada (Citizenship and Immigration), 2019 FCA 223 at para 122; Revell v Canada(Citizenship and Immigration), 2019 FCA 262, [2020] 2 FCR 355). Third, “Courts have consistently declined to recognize a right tofamily unity or family reunification under

section 7… (S)ection 7 does not invalidate the removal of a non-national, unless it can be established that he or she would be at risk of serious harm in the country to which removal is to takeplace… the Court rejected the … claim that

section 7 includes the right of parents and children not to be separated by state action (Begumv Canada (Citizenship and Immigration), 2018 FCA 181 at para 100). Finally, recent jurisprudence has confirmed that refusing to deferremoval so that a pending H&C request can be determined does not breach a claimant’s Charter rights” (Chen v Canada (Public Safetyand Emergency Preparedness), 2019 FC 1595). [29] Applying these considerations to the facts of this case leads inexorably to the conclusion that the Applicant’s Charter claim does notraise a serious issue. The H&C process does not engage

section 7 Charter rights, because it does not give rise to removal (Medovarski).The Applicant’s risks were assessed under the PRRA process, and he did not challenge that decision. His request for an administrativedeferral of removal was also considered and refused. The Applicant is seeking to challenge that decision, and he can continue thatprocess after his removal. Finally, the Applicant had access to this Court to seek a stay of removal. The case law is clear that thecumulative effect of these various processes is that the removal process complies with the Charter.

The international instruments towhich the Applicant refers to do not have the force of law in Canada, and cannot form a separate basis for a legal claim to the process. [30] In conclusion on the H&C application for leave and judicial review of the H&C request, I am unable to find that the Applicant hasraised a serious issue.

(2) The Deferral Request [31] The Applicant’s request to defer his removal was based on three factors: allowing him to remain in Canada until a decision is takenon his H&C request; the risks he would face because of the violence and instability in India; and the hardship his family would face if hewere removed. [32] The Officer refused the request, noting that according to the law and the Respondent’s policy manuals, the fact that an H&Capplication has been filed does not delay the removal and the application will continue to be processed as an inland claim.

The Officeralso noted that the current processing time for such requests is 20 months and thus a decision on the Applicant’s request is neitherimminent nor overdue.

The Officer noted that the Applicant’s claims about the risks he faced due to violence and instability in India hadbeen assessed in the PRRA decision of February 2021, and the Applicant had not provided evidence of new or more recent risks that hadarisen since then. [33] On the impact of removal on the Applicant’s family, the Officer acknowledged that “it is expected that there may be a period ofadjustment” for the Applicant and his spouse, “but there is no evidence provided that his spouse will not be able to continue to providesupport for herself and her young child or that support from other members of the family would be ineffective”.

The Officer determinedthat the Applicant’s spouse was the main financial support of the family, noting that the Applicant said he had not worked and hadclosed his trucking company after March 2022 (presumably, because he no longer had a valid work permit). On this point, the Officerobserved that the Applicant “indicated that he was occasionally completing some tasks for his spouse’s business.” The Officer found thatthe Applicant’s spouse and child would continue to have support of family in Canada, and that his brother and sisters could providesupport to his ailing father.

Further, the Officer stated that it is possible that the Applicant would not have to separate from his wife andchild, if they decided to accompany him to India.

[34] Based on all of these factors, the Officer dismissed the Applicant’s request to defer his removal. [35] The Applicant says that he has raised a serious issue regarding the deferral decision because it failed to take into account the bestinterests of his child, and it did not analyze the interference with family life with reference to his Charter rights or the internationalinstruments that apply. To some extent, these arguments overlap with the submissions on the H&C claim, and that analysis will not berepeated here.

As noted above, the Applicant’s Charter argument failed to meet the lower threshold that applied to the H&C claim; it isobvious, therefore, that a virtually identical argument that the deferral decision did not adequately address his Charter rights does notmeet the higher test that applies. [36] The Applicant’s main argument on this point is that the Officer failed to consider the best interests of the child, and the overallimpact on his family that will follow his removal.

I am not persuaded that the Applicant has shown “a strong case” or a “likelihood ofsuccess” on these points. [37] The starting point is the legal framework for deferral of removal, which has consistently been found to focus on short-term andtemporary considerations. Put another way, the Officer’s role is to assess when a removal should occur, and whether a short delay iswarranted; it is not to consider whether the person should be removed (Lewis at paras 54-56; Toney v Canada (Public Safety andEmergency Preparedness), 2019 FC 1018 at para 50).

Related to this, the jurisprudence is clear that an Officer is not required toundertake a “mini-H&C” nor the full-fledged best interests of the child analysis; instead, the focus is on the urgent, short-termimpediments to removal or valid reasons for a short delay in the scheduled departure (Lewis, paras 56-60; Newman v Canada (PublicSafety and Emergency Preparedness), 2016 FC 888 at para 19). [38] In this case, the Officer clearly acknowledged the impact removal would have on the Applicant’s spouse and child, as well as takingnote of the fact that the spouse was financially supporting the family and that she and the child will have the support of immediate familyif they stay in Canada.

The Officer also noted that the Applicant’s father would have the support of his other children to help him withmedical appointments. This reflects the Officer’s consideration of the evidence – and the Applicant does not point to any specificevidence that was ignored.

It also reflects an application of the relevant legal test to the circumstances of the case, again noting the verylimited discretion available to Officers to defer removal. [39] For these reasons, the Applicant has not demonstrated a likelihood that he will succeed in his challenge to the deferral decision. [40] In view of the conjunctive nature of the test, it is not necessary to address the other elements of the test in detail, but since thesematters were canvassed in the parties’ submissions, I will add a short discussion on the most salient aspects of each. B.

Irreparable Harm [41] The Applicant argues that he will suffer irreparable harm if removed to India because he risks losing his business, as well as hisfamily and home. He submits that his family will be thrown into poverty because he has been the main source of financial support.Because he has been unable to work recently, he has been his child’s main caregiver, and he is the main support to his ailing father. Hehas also been paying his brother’s tuition at the University of Calgary.

The Applicant argues that this interconnected web ofrelationships and dependencies will all be affected if he is removed from Canada. [42] As a general matter, the law requires that irreparable harm be proven with evidence at a convincing level of particularity. Generalassertions or predictions of harm are not enough; evidence is required (Ledshumanan, paras 54-55). [43] In this case, there is evidence that the Applicant was the main financial support for his family; he is co-owner (with his parents) ofthe home they all live in, and he has paid his brother’s university tuition.

However, the evidence also shows that he has not worked for asubstantial period.

There is evidence that the Applicant’s mother and wife have been working to provide financial support to the family.There is no evidence that supports the Applicant’s assertion that his family will lose their home or be thrown into poverty if he isremoved to India. [44] For these reasons, I am not persuaded that the Applicant has demonstrated irreparable harm “at a convincing level of particularity.” [45] There is no reason to doubt the Applicant’s claim that his departure from Canada will be painful for him and his family and that hewill suffer in particular because of separation from his wife and child.

As difficult as this may be for the Applicant and his wife andchild, these are not considerations that, in and of themselves, warrant granting a stay of removal. As has been aptly noted by JusticePelletier in Melo v Canada (Minister of Citizenship and Immigration), 188 F.T.R. 39, (FC) at paragraph 21: “…if thephrase irreparable harm is to retain any meaning at all, it must refer to some prejudice beyond that which is inherent to the notion ofdeportation itself. To be deported is to lose your job, to be separated from familiar faces and places. It is accompanied by enforcedseparation and heartbreak….” C.

Balance of Convenience [46] Canada has an interest in the prompt removal of persons without status in this country (as articulated in s. 48(2) of the IRPA).

It has long been recognized that this is not merely a matter of administrative convenience, butrather it goes to the wider public interest in ensuring confidence in the integrity of the immigration program as a whole: Vieira v Canada(Public Safety and Emergency Preparedness), 2007 FC 626; Ghanaseharanv Canada (Minister of Citizenship and Immigration), 2004FCA 261 at para 22. [47] On the other hand, Canada has an important interest in ensuring that it respects fundamental rights and freedoms, including thefundamental right to have one’s risks assessed in a manner that respects the principles of fundamental justice.

This includes ensuring thefulfillment, in a substantive and meaningful way, of the obligations Canada has undertaken both through the Charter and by adherence tointernational human rights obligations.

[ 48 ] In this case, for the reasons explained earlier, the Applicant’s Charter rights have been respected through the various opportunities to seek relief and hearings he has had, including the Immigration Division proceeding, the PRRA, the deferral requests, as well as this stay hearing. This will continue after his removal through the consideration of his outstanding H&C request.

He has been found inadmissible for serious criminality, and although he appears to have subsequently abided by Canadian law and become a productive member of society, his immigration status has been affected and he has become subject to removal. His arguments to delay his removal have not been accepted. [ 49 ] I am therefore persuaded that the balance of convenience lies with the Respondent.

The Minister is under a statutory obligation to effect the Applicant’s removal “as soon as possible.” In this case, the Applicant has been subject to a deportation order since 2019, and has had several opportunities to have his claims considered by various decision-makers. His request for H&C relief will continue to be processed and, if successful, he will be re-admitted to Canada. [ 50 ] Stepping back from the details of the tests, I am required to assess whether it is just and equitable, in all of the circumstances, to grant the stay of removal.

While I am sympathetic to the difficulties the Applicant, his wife and child, and his wider family will experience, I am not persuaded that justice or equity calls for the grant of a stay of his removal. [ 51 ] The Applicant is in this situation because of a number of decisions he made. He did not become a Canadian citizen despite many years in the country, and is thus subject to removal. He committed a very serious criminal offence for which he was convicted and sentenced to three years imprisonment, and a consequence of that conviction was that his immigration status in Canada was thrown into jeopardy.

Since then, the Applicant has apparently abided by the law and become a productive member of society, factors which will be considered by the Officer assessing his H&C claim. He has also availed himself of opportunities to have his risk of return to India assessed, and to request an administrative deferral of his removal, neither of which were successful.

He has also filed a more general claim for H&C relief, and he has brought this stay motion. [ 52 ] However, in these proceedings the Applicant has not demonstrated that his applications relating to the H&C process or the deferral process meet the legal tests for interlocutory relief, and he has not established irreparable harm at the level of particularity required by the law. [ 53 ] For all of these reasons, the Applicant’s motion for a stay of his removal is dismissed. ORDER in IMM-8402-22 THIS COURT’S ORDER is that the motion for a stay of removal is dismissed. “William F.

Pentney” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-8402-22 STYLE OF CAUSE: GURPREET SINGH WARRING v THE MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP CANADA PLACE OF HEARING: vANCOUVER, BRITISH COLUMBIA DATE OF HEARING: sEPTEMBER 20, 2022 JUDGMENT AND REASONS: PENTNEY J. DATED: SEPTEMBER 23, 2022 APPEARANCES : Stewart Istvanffy For The Applicant Meenu Ahluwalia For The Respondent SOLICITORS OF RECORD :

Étude Légale Stewart Istvanffy Barrister and Solicitor Montreal, QC For The Applicant Attorney General of Canada Vancouver, BC For The Respondent