Digests

Kanagasabapathy v. Canada (Minister of Citizenship and Immigration)

IMM-2112-04, IMM-2114-04

2004 FC 441, Mosley J.

24/3/04

6 pp.

Judicial review of enforcement officer's decision not to defer applicant's removal and Pre-Removal Risk Assessment (PRRA) officer's negative determination in relation to PPRA application--Applicant received negative PRRA in January 2004--In February 2004, enforcement officer issued removal order--Applicant's motion for stay of removal granted in relation to IMM-2114-04, pending determination of humanita-rian and compassionate application (H&C application)-- Applying three-part, conjunctive test set out in Toth v. Canada (Minister of Citizenship and Immigration) (1988), 86 N.R. 302 (F.C.A.), first motion for stay in relation to IMM-2112-04 dismissed as disclosing no serious issue to be tried--Elevated standard applies to stay motion arising from refusal to defer applicant's removal because stay, if granted, effectively grants relief sought in underlying judicial review application-- Accordingly, necessary to go further than simply applying "serious issue" test and to closely examine merits of underlying application--Lawful reason for not executing removal order must be found in statute or in some other legal obligation sufficient in importance to relieve Minister from compliance with Immigration and Refugee Protection Act, s. 48--Nothing indicating officer's s. 48 discretion improperly exercised, therefore, motion for stay in relation to IMM-2112-04 dismissed--As to second motion, IMM-2114-04, serious issue appropriate standard of proof to be applied when analysing risk pursuant to Act, s. 97(1)(b)--Officer concluded not "more likely than not that he [applicant] faces a substantial risk to life, of torture, or of cruel and unusual treatment or punishment per section 97"--This reflects officer subsumed threshold of "substantial grounds" of torture, set out in s. 97(1)(a), into threshold of personalized risk as set out in s. 97(1)(b)--Decision of Li v. Canada (Minister of Citizenship and Immigration) (2003), 243 F.T.R. 261 (F.C.), addressed standard of proof to apply to s. 97(1), but only peripherally touches upon explicit difference in statutory language between ss. 97(1)(a) and 97(1)(b)--Questions in relation to this issue certified, appeal now pending--As for second and third branch of test, both irreparable harm and balance of convenience favouring applicant--Motion for stay of removal allowed--Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 48, 97.