PRESENT: The Honourable
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] [59]… Reviewing courts cannot substitute their own appreciation of the appropriate solution, but must rather determine if the outcome falls within “a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir, at para. 47). There might be more than one reasonable outcome. However, as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome.
(
[67] While I agree entirely with my colleague’s approach to the “serious issue” prong of the tripartite test in the context of a motion to stay a removal order, I would add the following. In determining whether a serious issue exists so as to warrant the granting of a stay of removal, the Judge hearing the motion should clearly have in mind, first of all, that the discretion to defer the removal of a person subject to an enforceable removal order is limited, as explained in Simoes, supra, and, particularly, in Wang, supra. Second, the Judge should also have in mind that the standard of review of an enforcement officer’s decision is that of reasonableness. Thus, for an applicant to succeed on a judicial review challenge of such a decision, he or she must be able to put forward quite a strong case. In my view, the appellants herein clearly did not have such a case to put forward.
(Baron v.
[2] Madam Yueyou Guan, the Applicant has filed a motion for a stay of her removal scheduled for August 15, 2009.
[3] The Court has received the parties’ respective documents, has read the contents, written pleadings and has heard counsel for the parties by teleconference.
[4] The assessment of this matter by the Court is fully based on the requirements of the tri-partite Toth v.
[5] The Court is not satisfied that the tripartite Toth test is met by the Applicant in any one of the three prongs.
[6] The Applicant has not fulfilled the necessities of the “test” on the basis of the Applicant’s pending in-Canada spousal sponsorship application nor on the fact that she has two sons with temporary status in
[7] The Applicant has no argument of contention in respect of the Pre-Removal Risk Assessment (PRRA). The PRRA reasons in the Applicant’s regard demonstrate that the entire evidence (both the objective, country evidence as well as the subjective, personal specific evidence of Madam Guan) was considered reasonably without any risk to the Applicant; the officer’s inherent logic is borne out in the reasons for the decision. Neither irreparable harm, nor a balance of convenience, favour the Applicant in respect of the pending spousal sponsorship application nor due to the Applicant’s sons’ temporary status in
[8] Also, no serious issue has been pointed out by counsel for the Applicant in respect of the health of the Applicant that cannot be treated in her country of origin. The separation from the Applicant’s grown sons, jurisprudentially, does not change the situation (Baron, above).
[9] Thus, the conjunctive requirements of the Toth test have not been met.
JUDGMENT
THEREFORE, THIS COURT ORDERS that the Motion for a stay of the removal be dismissed.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4098-09
STYLE OF CAUSE: GUAN, YUEYOU
v. THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING:
DATE OF HEARING: August 14, 5009 (by teleconference)
APPEARANCES:
| Mr. Calvin Chung Huong
|
|
| Ms. Amina Riaz
|
SOLICITORS OF RECORD:
| CALVIN CHUNG HUONG
Barrister and Solicitor
|
|
| JOHN H. SIMS, Q.C.
Deputy Attorney General of
|