Date: 20001213
Docket No.: IMM-6284-00
OTTAWA, ONTARIO, THIS 13th DAY OF DECEMBER, 2000
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
NIRMAL SINGH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER and ORDER
[1] The proper test to apply in an application for a stay is the tripartite test set out in Toth v. M.E.I. (1988), 86 N.R. 302 (F.C.A.).
[2] Dealing firstly with the serious issue. The underlying application is for a mandamus compelling the respondent to determine the humanitarian and compassionate grounds application made less than a week ago. There is no unreasonable delay by the Minister in dealing with the humanitarian and compassionate grounds application and no refusal by the Minister to make a decision.
[3] It is generally accepted by this Court that last minute humanitarian and compassionate grounds application under s. 114(2) of the Immigration Act, R.S.C. 1998, c. I-2, are not in and of itself grounds for a stay.
[4] I accept the submission of the respondent and find that the applicant has failed to establish that the underlying application for mandamus is a serious issue to be heard.
[5] I also find that the applicant has failed to establish irreparable harm should the stay not be granted. Separation in and of itself is not sufficient to demonstrate irreparable harm. The humanitarian and compassionate grounds application will continue even after removal.
[6] On the last branch of the tripartite test, balance of convenience, I find that the balance of convenience favours the respondent. I make mine the position of Madam Justice Reed in Membreno-Gracia v. Canada (M.C.I.) (1992), 93 D.L.R. (4th ) 620 (T.D.):
| ... when applicants seek humanitarian and compassionate reviews, especially on the eve of the execution of a deportation order and then argue that a stay should be granted because of the uncompleted nature of that review. This is the kind of situation in which there is potential for creating a practice which undermines the orderly operation of the legislative scheme. |
[7] For the above reasons the motion is dismissed.
ORDER
The motion is dismissed.
"Edmond P. Blanchard"
Judge