Date: 20010215
Docket: IMM-647-01
Citation: 2001 FCT 84
Ottawa, Ontario, this 15th day of February, 2001
| PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE |
BETWEEN:
KENROY CLIVE CHAMBERS
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is a motion by Kenroy Clive Chambers (the "applicant") to stay his removal to Jamaica which is scheduled for February 16, 2001.
[2] In order to obtain a stay, the applicant must satisfy the requirements set out in Toth v. Canada (Minister of Employment and Immigration), (1988) 86 N.R. 302 (F.C.A.) at page 305:
| This Court, as well as other appellate courts have adopted the test for an interim injunction enunciated by the House of Lords in American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 [Footnote 3 appended to judgment]. As stated by Kerans J.A. in the Black case supra: |
| The tri-partite test of Cyanamid requires, for the granting of such an order, that the applicant demonstrate, firstly, that he has raised a serious issue to be tried; secondly that he would suffer irreparable harm if no order was granted; and thirdly that the balance of convenience considering the total situation of both parties, favours the order. |
The applicant is required to satisfy all three branches of the tri-partite test.
[3] The applicant's counsel, in arguing the motion before me stated that the serious issue to be tried was that the removal officer failed or had not considered the best interests of his children (being humanitarian and compassionate grounds) when issuing the February 5, 2001 decision to effect removal of the applicant. This issue has already been decided by this Court in Janet Delrita Cummings Simoes, Camille Resheka Perch and Kerchelle Kelly-Ann Simoes by their litigation guardian Janet Delrita Cummings Simoes and The Minister of Citizenship and Immigration, (June 16, 2000), Docket IMM-2664-00 (F.C.T.D.) where Justice Nadon stated at page 6:
| I am in complete agreement with the view expressed by Dawson J. In my opinion, Baker does not require a removal officer to undertake a substantive review of the children's best interests, including the fact that the children are Canadian. This is clearly within the mandate of an H & C officer. To "read in" such a mandate at the removals stage would, in effect, result in a "pre H & C" application, which in my opinion, is not what the law requires. Section 48 of the Immigration Act provides the following: "Subject to sections 49 and 50, a removal order shall be executed as soon as reasonably practicable." Sections 49 and 50 deal with statutory stays of execution in certain defined circumstances; for instance, where an applicant has filed an appeal which has yet to be heard and disposed of, or where there are other proceedings. |
In my opinion, the discretion that a removal officer may exercise is very limited, and in any case, is restricted to when a removal order will be executed. 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 travelling, and pending H & C applications that were brought on a timely basis but have yet to be resolved due to backlogs in the system. . . .
I agree with this reasoning. Consequently, the applicant has not raised a serious issue to be tried. Furthermore, since the applicant must satisfy all three branches of the Toth, supra test, the applicant's motion for a stay must fail. It is not necessary to discuss the other two branches of the tri-partite test.
[4] The motion for a stay is therefore denied.
ORDER
[5] IT IS ORDERED that the motion for a stay is denied.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
February 15, 2001