[1]                The Applicant, Mr. Adam Idriss Gakou, is a citizen of Mali. He came to Canada on April 4th, 2002, and claimed refugee status on the ground that he was homosexual, in a country where it is illegal to be homosexual. The Refugee Division of the Immigration and Refugee Board rejected his claim in a decision dated October 22, 2002, because of its concerns with respect to the Applicant's credibility and because he spent three months in the United States before coming to Canada without applying for asylum. This Court subsequently dismissed an application for leave and for judicial review of that decision.

[2]                In 2003, the Applicant applied for a Humanitarian and Compassionate Grounds application.

[3]                In 2004, the Applicant met with his current spouse, Mrs. Fanta Diane, who is a landed immigrant to Canada. They got married on June 19th, 2005. The Applicant's wife put in an application for sponsorship.

[4]                On August 17th, 2005, his PRRA (Pre-Removal Risk Assessment) application was rejected, essentially because no new evidence was provided to establish that the Applicant would be at risk if returned to Mali.

[5]                The Applicant was advised on the 31st day of August, 2005, that he would be removed from Canada on the 14th day of September 2005. This is why he has applied for a stay of execution of this deportation order.

[6]                After having reviewed the parties' motion records and heard counsel by teleconference on September 13, 2005, I have come to the conclusion that the motion should be dismissed for the following reasons. I am governed by the tripartite test for granting a stay as set out by the Supreme Court of Canada in R.J.R. MacDonald Inc. v. Canada (A.G.), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, [1994] S.C.J. No. 17 (QL), and by the Federal Court of Appeal in Toth v. M.E.I. (1988), 1988 CanLII 1420 (FCA), 86 N.R. 302, [1988] F.C.J. No. 587 (QL). As a result, three questions have to be answered: 1) Is there a serious question to be tried; 2) Has the litigant seeking the stay demonstrated that he would suffer irreparable harm if the stay is not granted; and 3) Which of the two parties would suffer the greater harm from the

[7]                As for the serious question, there was some confusion as to whether the underlying application for leave and judicial review was challenging the removal order itself, in which case it would be out of time, or the refusal to accede to the request made by the Applicant's counsel to defer the removal. In that latter case, the application was somewhat premature since the enforcement officer of the Canada Border Services Agency communicated the refusal to defer to counsel for the Applicant two days after the application for leave and judicial review had been filed!

[8]                In any event, I must conclude that no serious issue has been raised with respect to that decision. It must be remembered that in the case of an application for a stay of the decision of a removal officer, the Court must not only determine whether a serious issue is raised, but should go further and consider the merits of the application and the likelihood of success. As explained by Justice Pelletier in Wang v. Canada (M.C.I.), 2001 FCT 148 (CanLII), 2001 F.C.T. 148 (QL), this higher threshold is justified where the result of the interlocutory motion will in essence amount to a final determination of the action.

[9]                Counsel for the Applicant contended that the Removal Officer did not consider the H & C application nor the new personal circumstances of the Applicant (in particular his marriage and the emotional and financial support that he provides to his wife). The absence of evidence that the officer exercised his discretion fairly before carrying out the removal order would constitute, in his view, a serious issue.

[10]            Section 48(2) of IRPA states that "if a removal order is enforceable, the foreign national against whom it was made must leave Canada immediately and it must be enforced as soon as is reasonably practicable". There is general agreement that this leaves the removal officer with very little discretion: Simoes v. Canada(Minister of Citizenship and Immigration), 2000 CanLII 15668 (FC), [2000] F.C.J. No. 936 (QL).

[11]            There is also a consensus that the mere existence of an H & C application cannot bar the execution of a removal order. "To hold otherwise", as Noël J. correctly observed, "would, in effect, allow claimants to automatically and unilaterally stay the execution of validly issued removal orders at their will and leisure by the filing of the appropriate application. This result is obviously not one which Parliament intended." (Francis v. M.C.I., IMM-156-97).

[12]            As I stated in Munar v. The Minister of Citizenship and Immigration and The Minister of Public Safety and Emergency Preparedness (2005 FC 1180 (CanLII), 2005 F.C. 1180), "...removals officers cannot be required to undertake a full substantive review of the humanitarian circumstances that are to be considered as part of an H & C assessment. Not only would that result in a "pre H & C" application", to use the words of Justice Nadon in Simoes, but it would also duplicate to some extent the real H & C assessment. More importantly, removal officers have no jurisdiction or delegated authority to determine applications for permanent residence submitted under section 25 of the IRPA. They are employed by the Canadian Border Services Agency, an agency under the auspices of the Minister of Public Safety and Emergency Preparedness, and not by the Department of Citizenship and Immigration. They are not trained to perform an H & C assessment".

[13]            In the present case, the enforcement officer did state that he considered the Applicant's counsel's request, but nevertheless came to the conclusion that a deferral of the execution of the removal order is inappropriate. I do not see what an affidavit from that officer stating that he made his decision fairly would have added. There is no reason to believe that he did not give due consideration to the personal circumstances of the Applicant before coming to his conclusion.

[14]            Moreover, and despite the fact that it is not for the removal officer nor for this Court to assess the Mr. Gakou's H & C application, his lack of credibility can certainly be taken into account. As was pointed out by the Respondent, Mr. Gakou first attempted to come to Canada as a visitor in 2001 and was turned down. Less than a year later, he entered Canada illegally after having spent three months in the United States. He claimed refugee status on the basis of his homosexuality, but was found not to be credible by the Refugee Protection Division. He then got married, yet his H & C application is essentially based on his alleged homosexuality. Considering all of the foregoing, the Applicant has failed to convince me that the removal officer was unfair and did not give sufficient weight to his H & C application when he decided not to defer his deportation.

[15]            Be that as it may, the Applicant must succeed on all three branches of the Toth test. Yet, his counsel was unable to provide any evidence of harm that would take the Applicant's family separation out of the normal consequences of deportation. As Justice Evans recently wrote: "The question is, therefore, whether, on the evidence before me, the impact of removal on Mr. Tesoro and his family as a result of the separation will be more than "the usual consequences of deportation". This would seem a more difficult test for Mr. Tesoro to meet than that of an impact on family relationships which is sufficiently serious to rise above the level of "mere inconvenience": Tesoro v. M.C.I., 2005 FCA 148, at para. 35, [2005] F.C.J. No. 698 (QL).

[16]            Finally, the Applicant is being removed to the United States. There is no evidence before this court that the Applicant's wife, if the marriage is bona fide, cannot visit the Applicant in the United States. Neither is there evidence that the Applicant will not be able to work in the United Statesin the interim period when this court is deciding on his underlying application for leave.

[17]            In light of all this, the balance of any inconvenience which the Applicant may suffer as a result of their removal from Canada does not outweigh the public interest which the Respondent Minister seeks to maintain in the application of the Immigration and Refugee Protection Act, specifically his interest in executing deportation orders as soon as reasonably practicable.

[18]            As a result, the motion of the Applicant for a stay of removal is dismissed.