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January 9, 2004

Mensah v. Canada (Minister of Citizenship and Immigration), 2004 FC 78 (CanLII)

Date: 20040119

Docket: IMM-10506-03

Citation: 2004 FC 78

Toronto, Ontario, January 19th, 2004

Present:          The Honourable Mr. Justice Shore







                                                REASONS FOR ORDER AND ORDER


 [1]  This is a motion to stay the execution of a removal. The Applicant is being removed from Canada on January 20, 2004.


 [2]  The Applicant requests that the Court stay the Direction to Report for Removal issued by Expulsion Officer, Tammy Hanlon, on December 10, 2003 and communicated to the Applicant on December 10, 2003, wherein the Applicant is directed to report for removal on January 20, 2004 at 3 p.m. for Ghana.

  BACKGROUND   [3] The Applicant has been in Canada for 6 years. He filed a current Humanitarian and Compassionate Application that is still pending. (This is his third H and C application.)   [4]The Applicant has a common law wife and a 4 month old baby. The Applicant has been employed, and supports his wife and child financially. The Applicant's wife does not work outside the home.   ISSUE   Should the removal order be stayed?   ANALYSIS   In order to grant a stay of a removal order, the Court must be satisfied: (a)         the Applicant has raised a serious issue to be tried;  (b)         the Applicant will suffer irreparable harm if removed from Canada;  (c)         the balance of convenience favours the Applicant. The Applicant must satisfy all three branches of the test. (See Toth v. Canada (Minister of Employment and Immigration (1988), N.R. 302 (F.C.A.). If any one of the branches of the test is not met then the Court is not deemed satisfied as to the test itself.  [5]  The Applicant argues that the best interests of the child have not been taken into account, and that in itself raises a serious issue. This is under the consideration of the Court.  [6] In exceptional circumstances, such as when an H & C application has been filed in a timely fashion but has remained outstanding for an inordinate amount of time, then stays may be granted (See, e.g. Harry v. Canada (M.C.I.)).[1] However, ordinarily the mere existence of an H & C application cannot bar the execution of a removal order. (See e.g. Simoes v. Canada (M.C.I.))[2]. Moreover, the fact that Applicant's child best interests have not been taken into consideration yet is not sufficient grounds to grant a stay. It is the role of the immigration officer assessing the H & C application to examine the best interests of the child, and not of the Court. It is not an issue in and of itself, and therefore, cannot be a serious issue to be tried.  [7]                The Respondent argues that the H & C application was filed in October 2003 after the Applicant's removal interview. He also filed one in 1998 and another in 2002. A woman other than his present partner sponsored the former. The application was refused in September 2001. Yet another woman sponsored the latter application. She, however, withdrew her sponsorship upon learning, that the Applicant had only married her for immigration purposes.  [8]                The Applicant also argues that the Immigration Enforcement Officer was specifically requested to defer removal in respect to the present application in order to consider the best interests of the child, but did not reply to the request. The Enforcement Officer has the discretion to defer removal. As of receipt of the documents in respect of this proceeding, the Enforcement Officer has not deferred removal.  [9]                Nowhere is it stated that the Immigration Enforcement Officer must respond when asked for a deferral of a removal order. In the case of the issuance of visas for permanent residency, however, it has been determined by the Court that once an Applicant requests a visa officer to exercise his or her discretion to issue a visa despite the fact that the Applicant has not received sufficient points to obtain a visa, then the visa officer is required to consider whether or not to exercise his or her discretion; this is not the case of the current matter before the Court.  [10]            In Prasad v. Canada (Minister of Citizenship and Immigration)[3], a decision by Russell, J. summarizes the criteria the Immigration Enforcement Officer would consider. It is also recognized that the imperative terms of section 48 of the IRPA, make it clear that where a removal order is valid and effective, immediate removal is the rule and deferral is an exception.  [11]            The Applicant also submits that where, as here, new legislation is under consideration or challenge, that, in itself, is a serious issue to be considered. While the Applicant is bringing the motion under new legislation, it does not appear that the issue raised has not been considered prior to the new legislation. Thus, as there is nothing novel, this does not constitute a serious issue.  [12]               The Applicant submits that the Respondent has a duty in law and policy to assess the humanitarian and compassionate application made by the Applicant; however, the Respondent is not declaring that the application will not be assessed. It may simply not be assessed before the Applicant is removed from Canada. As such, whether the Respondent is complying with his legal duty is not at issue.  CONCLUSION [13]            Since the first branch of the test has not been met, the motion to stay the execution of the removal is denied.   ORDER THIS COURT ORDERS that the motion is denied. "Michel M. J. Shore" J.F.C.   FEDERAL COURT NAMES OF COUNSEL AND SOLICITORS OF RECORD   DOCKET:                                                 IMM-10506-03 STYLE OF CAUSE: JOSEPH MENSAH Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent PLACE OF HEARING:                         TORONTO, ONTARIO DATE OF HEARING:                            JANUARY 19, 2004 REASONS FOR ORDER AND ORDER BY :                               SHORE J. DATED:                                                    JANUARY 19, 2004 APPEARANCES: Mr. Munyonzwe Hamalengwa                                                FOR APPLICANT   Mr. Jeremiah Eastman                                                    FOR RESPONDENT   SOLICITORS OF RECORD: Munyonzwe Hamalengwa Barrister & Solicitor Toronto, Ontario FOR APPLICANT   Morris Rosenberg Deputy Attorney General of Canada Toronto, Ontario FOR RESPONDENT                                                                          FEDERAL COURT TRIAL DIVISION Date: 20040119 Docket: IMM-10506-03   BETWEEN:   JOSEPH MENSAH Applicant   and   THE MINISTER OF CITIZENSHIP AND IMMIGRATION   Respondent     REASONS FOR ORDER AND ORDER     [1]Harry v. Canada (Minister of Citizenship and Immigration), [2000], F.C.J. No. 1727. [2]Simoes v. Canada (Minister of Citizenship and Immigration), [2000], F.C.J. No. 936. [3][2003] F.C.J. No. 805.

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