Category: Deferral and Stays

The Court dismissed a request to defer

The Court set aside a refusal to defer. The Applicant a child was in the temporary custody of the children's aid. The decision to refuse to defer was set aside because the officer failed to properly consider what would happen to the child if returned to his home.

The court granted a stay of removal pending judicial review of a refusal to defer.

Shpati v. Canada (Pulic Safety and Emergency Preparedness)/, IMM-1396-10, 2010 FC 1046, Harrington J. This case should be reported first for its analysis of the issue of fairness. The court holds that there is a breach of fairness in circumstances where an officer questions evidence that has not previously been questioned as relies on an absence of evidence. In such circumstances notice is required. He also found deficient analysis of the best interests of the child. Finally the case also raises an interesting discussion about the scope of an officer to defer and the matters that ought to be taken into consideration.

Court grants stay in context of judicial review of refusal to defer. Applicant asserts new ground of risk in new PRRA and asks for deferral until PRRA decided.

The Court set aside a refusal to defer: [41] It is well understood that an enforcement officer has a limited discretion to defer removal. However, this Court has consistently recognized that where an applicant has made a timely H&C application that remains outstanding at the time of the deferral request, then the officer can consider this factor as a special circumstance in deciding whether to exercise his discretion to defer under section 48 of the Act. See Bagri, Wang, Baker, Bhagat, Harry, and Simoes, above. [42] My review of the Decision convinces me that the Officer in this case, although he acknowledged the outstanding H&C application, failed to turn his mind to whether it amounted to a special circumstance on the facts of this case. The Applicant, at the material time, had a timely H&C application outstanding for some three years through no fault of the Applicant. Not to recognize this as a possible factor in a deferral decision would be to secretly undercut the H&C process from the perspective of applicants. In my view, this is not entirely remedied by the fact that the H&C process can be continued outside Canada. [43] As the Applicant points out, following Simoes, above, in deciding when it is “reasonably practicable” for a removal order to be executed, a removal officer may consider various factors such as illness, other impediments to travel and pending H&C applications that were brought on a timely basis but have yet to be resolved due to backlogs in the system. In the present case we also have the same error that occurred in Bhagat, above, at paragraph 18: “it is clear that the Enforcement Officer calculated timeliness not in terms of when the H&C application was filed but when it would be decided.” [44] I note also that in Harry, above, Justice Gibson calculated that an H&C application was outstanding in terms of the time lapse between the time the H&C application was filed and when the applicant in that case was scheduled to be removed. Moreover, as I pointed out in Villanueva v. Canada (Minister of Public Safety and Emergency Preparedness), 2010 FC 543 (Can. LII), Justice Zinn in Williams v. Canada (Minister of Public Safety and Emergency Preparedness), 2010 FC 274 at paragraph 36 made it clear that [w]here the Minister has failed in his duty to promptly process an H&C application, then this should be a relevant consideration when determining when it is "reasonably practicable" to remove that applicant. Where an H&C application was filed promptly and the only reason why it has not been determined lies in the hands of the Minister, then the Minister should not be allowed to rigorously enforce his duty of removal when he has been delinquent in his duty to process applications that may make the removal unnecessary or invalid. [45] In the present case, although asked to defer on the basis of a timely H&C application that was long outstanding through no fault of the Applicant, the Officer failed to turn his mind to this issue in deciding whether this was a special circumstance that affected the reasonable practicality of removal. In my view, this was a reviewable error and the Decision must be returned for reconsideration.

The Court set aside a refusal to deter based on a long filed H & C application.acknowledged the outstanding H&C application, failed to turn his mind to whether it amounted to a special circumstance on the facts of this case. The Applicant, at the material time, had a timely H&C application outstanding for some three years through no fault of the Applicant. Not to recognize this as a possible factor in a deferral decision would be to secretly undercut the H&C process from the perspective of applicants. In my view, this is not entirely remedied by the fact that the H&C process can be continued outside Canada. [43] As the Applicant points out, following Simoes, above, in deciding when it is “reasonably practicable” for a removal order to be executed, a removal officer may consider various factors such as illness, other impediments to travel and pending H&C applications that were brought on a timely basis but have yet to be resolved due to backlogs in the system. In the present case we also have the same error that occurred in Bhagat, above, at paragraph 18: “it is clear that the Enforcement Officer calculated timeliness not in terms of when the H&C application was filed but when it would be decided.” [44] I note also that in Harry, above, Justice Gibson calculated that an H&C application was outstanding in terms of the time lapse between the time the H&C application was filed and when the applicant in that case was scheduled to be removed. Moreover, as I pointed out in Villanueva v. Canada (Minister of Public Safety and Emergency Preparedness), 2010 FC 543 (Can. LII), Justice Zinn in Williams v. Canada (Minister of Public Safety and Emergency Preparedness), 2010 FC 274 at paragraph 36 made it clear that [w]here the Minister has failed in his duty to promptly process an H&C application, then this should be a relevant consideration when determining when it is "reasonably practicable" to remove that applicant. Where an H&C application was filed promptly and the only reason why it has not been determined lies in the hands of the Minister, then the Minister should not be allowed to rigorously enforce his duty of removal when he has been delinquent in his duty to process applications that may make the removal unnecessary or invalid. [45] was long outstanding through no fault of the Applicant, the Officer failed to turn his mind to this issue in deciding whether this was a special circumstance that affected the reasonable practicality of removal. In my view, this was a reviewable error and the Decision must be returned for reconsideration.

The Court denied a stay of an admissibility hearing. The harm was speculative. Although interlocutory decisions are not generally reviewable the court does have a discretion to review them. The Court did not determine whether or not this was an appropriate case for review but declined the stay of proceedings.

The Court dismissed an application for a stay of a hearing regarding punishment for a trustee in bankruptcy who had failed to properly discharge his obligations. The Applicant was seeking review of other allegations that had been dismissed and sought a stay. The Court found no irreparable harm and also noted that if the stay were granted it would have the effect of reviewing an interlocutory decision something precluded by the jurisprudence

The Court dismissed the judicial review of a refusal to defer noting: [17] Perhaps an enforcement officer may defer the removal if the decision on the in-Canada spousal application is imminent, thus possibly avoiding multiple displacements for the Applicant should his in-Canada spousal application be accepted; and perhaps the length of time for which an in-Canada spousal application has been pending may be a factor in determining if a decision on the application is impeding; however the simple fact that an in-Canada spousal application is pending does not justify a deferral absent special circumstances. The enforcement officer did not act unreasonably in refusing to defer the removal of the Applicant on this basis. [18] The authority of an enforcement officer is precisely what the title of the position calls for: the enforcement of removals. The enforcement officer has a limited discretion concerning the timing of a removal, but his or her authority does not and should not extend to delaying a removal pending the outcome of an in-Canada spousal application where the Act itself or public policy does not provide for such a deferral and where the decision on the pending application is not imminent.