CITIZENSHIP AND IMMIGRATION |
Exclusion and Removal |
Removal of Visitors |
Rettegi v. Canada (Minister of Citizenship and Immigration)
IMM-473-02
2002 FCT 153, Pelletier J.
11/2/02
10 pp.
Application for stay of removal pending determination of judicial review of Enforcement Officer's failure to defer removal pending disposition of Married Inland Spousal application--Applicant ethnic Hungarian, citizen of Romania --Entered Canada with false Hungarian passport in 1999-- Claiming refugee status--In February 2001 married, and in May filed Married Inland Spousal Application for permanent residence, type of application for landing from within Canada on humanitarian and compassionate (H&C) grounds-- Abandoned refugee application, relied on H&C application-- In November wife gave birth to son--Because of abandonment of application for refugee status, conditional departure order became effective--Applicant no longer having work authorization, but could provide child care while wife works--Enforcement Officer noting discretion to defer removal limited to logistical problems, such as lack of documents, physical incapacity, statutory stays or moratoria on removals to certain countries--Holding if credible, objective evidence of risk of harm, had discretion to refer matter for assessment of risk of return--Concluded none of these factors applied--H&C application pending for 8 1/2 months--Open question whether Nadon J.'s comment in Simoës v. Canada (Minister of Citizenship and Immigration) (2000), 7 Imm. L.R. (3d) 141 (F.C.T.D.) that enforcement officer could consider outstanding H&C application made in timely fashion meaning Enforcement Officer must consider pending H&C application when dealing with request to defer removal--Satisfying requirement of serious issue to be tried--"Mere" family separation not irreparable harm--Only basis for assessing risk of return of applicant to Romania withdrawn application for refugee status--Insufficient factual basis to raise prospect of irreparable harm--If deported, Immigration Act, s. 55(1) will require applicant to obtain Minister's written consent before being allowed to return to Canada, to repay any amounts Minister expended returning him to Romania--Also, current processing of application will cease, whole matter will be remitted to consular officials in Romania--Applicant arguing means loss of benefit of application--Immigration Manual contemplating Minister's consent will be issued where H&C application successful-- Where application approved after removal, Manual indicating local visa office advised of approval--Apparently processing continuing at original office--Case wherein loss of benefit of application because unlikely authorities to whom delivered upon removal would release applicant from custody in event of successful H&C application, distinguished--Here process simply becoming more cumbersome, expensive than if matter disposed of while applicant in Canada--Applicant will likely get benefit of application if successful--Irreparable harm not made out--Application for stay dismissed since all three factors must be present in order for stay to be granted--Immigration Act, R.S.C., 1985, c. I-2, s. 55(1).