Ottawa, Ontario, March 24, 2006
PRESENT: The Honourable Mr. JusticeShore
BETWEEN:
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS AND
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] The applicant has filed a motion for a stay of the execution of the removal order against him. The underlying application is for leave and judicial review of the decision of the Pre-Removal Risk Assessment (PRRA) officer denying the Applicant's application for protection under PRRA.
BACKGROUND
[2] The Applicant, a citizen of Guyana, came to Canada on June 18, 2003.
[3] The Applicant claimed refugee status and the claim was refused on June 7, 2004. The Applicant has not challenged this decision.
[4] On November 22, 2004, Ms. Karen Maria Sukhram applied to sponsor the Applicant for permanent residence under the spousal classification. The spousal application was refused on November 7, 2005. She has appealed the refusal to the Immigration Appeal Division of the Immigration and Refugee Board (Appeal Division). The Applicant has not appealed this decision.
[5] On July 22, 2005 the Applicant applied for a PRRA. The Applicant received a negative decision on his PRRA on January 26, 2006.
[6] The Applicant is scheduled for removal to Guyana on March 24, 2006.
[7] In denying the Applicant's PRRA application, the PRRA officer noted that the Applicant had submitted no new evidence from the date his refugee claim was denied. Excerpts of documents, referring to general conditions faced by all citizens of Guyana and not personal to the Applicant, were submitted to the PRRA officer. The PRRA officer considered these quotes in assessing general country conditions in Guyana.
ISSUE
[8] The Applicant has failed to meet the tri-partite test for warranting a stay of removal given the lack of a serious issue, the absence of demonstrable proof of irreparable harm, and the balance of convenience favouring the Minister.
AMENDMENT TO STYLEOF CAUSE
[9] This is a motion seeking a stay of removal until the underlying application for leave and judicial review decided. The application for leave and judicial review concerns a decision of a removal officer, emanating from the Canada Border Services Agency (CBSA). Further to a request from the Respondent requests that the Court order that the style of cause be amended to add the Minister of Public Safety and Emergency Preparedness as a responding party, the proper responding parties are therefore the Minister of Public Safety and Emergency Preparedness and the Minister of Citizenship and Immigration, pursuant to the coming into force of the Department of Public Safety and Emergency Preparedness Act (Bill C-6) on April 4, 2005; the Solicitor General's responsibilities with respect to the CBSA have now been transferred to the Minister of Public Safety and Emergency Preparedness, and the Minister of Citizenship and Immigration has responsibility for PRRAs. (Public Services Rearrangement and Transfer of Duties Act, R.S.C. 1985, c. P-34; Orders in Council, P.C. 2003-2061 & P.C. 2003-2063; Department of Public Safety and Emergency Preparedness Act, S.C. 2005, c. 10, s. 7; Order in Council, P.C. 2005-482.
TEST
[10] The test for granting a stay is well established. The Applicants must establish:
(1) That there is a serious question to be tried;
(2) That the moving party would, unless the injunction is granted, suffer irreparable harm; and
(3) That the balance of convenience favours the moving party.
Toth v. Canada(Minister of Employment and Immigration).(1988), 86 N.R. 302 (F.C.A.); RJR-MacDonald Inc. v. Canada(A.G.), [1994] 1 S.C.R. 311
[11] The requirements of the tripartite test are conjunctive. That is, the Applicants must satisfy all three branches of the test before this Court can grant a stay of proceedings. (Toth, above; Marenco v. Canada (Minister of Citizenship and Immigration) (1994), 86 F.T.R. 299 at 303)
SERIOUS ISSUE
[12] In order to succeed in raising a serious issue, the Applicant must establish a serious issue exists with respect to his entitlement to an order granting leave and judicial review of the PRRA decision. As the Court in Emmanuel held:
For a serious issue to be established, the issue must a rise out of the underlying application and an evidentiary basis must exist to support it.
Emmanuel v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 674 (F.C.T.D.) (QL), para. 11; Immigration and Refugee Protection Act, S.C. 2001, c.27 (IRPA) s. 97
[13] No serious issue was raised with respect to the PRRA decision. No evidence was submitted that the PRRA ignored, misapplied or misinterpreted any evidence in making the decision. It is clear that the PRRA officer weighed all of the evidence before her. The PRRA officer found that there was adequate state protection for the Applicant and that the Applicant had not shown that he would be at risk to life or cruel and unusual treatment or punishment on an objective basis. The PRRA officer found that the Applicant had not demonstrated that he would be subjected to a danger, believed on substantial grounds to exist, of torture. The fact that the PRRA officer reached a conclusion that is unfavourable to the Applicant is not, without more a reviewable error. (Respondent's Record, Tab 1, Exhibit "B", p.; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, para. 38; Zheliazouski v. Canada (Minister of Citizenship and Immigration) (19 February 2003); IMM-924-03 (F.C.T.D.); Bukhari v. Canada (Minister of Citizenship and Immigration), 2003 FCT 467 (F.C.T.D.), paras. 12-13; Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at p. 723; Canada(Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.), pp. 132, 133)
[14] The issue of a stay is an extraordinary remedy; the Applicant must demonstrate special and compelling circumstances that would warrant "exceptional judicial intervention". The Respondent submits that the Applicant has not so shown in this case. (Ikeji v. Canada(Minister of Citizenship and Immigration), 2001 FCT 573(F.C.T.D.), [2001] F.C.J. No. 885 (QL) para. 8)
[15] The Applicant's spouse has filed an appeal of the refusal of his sponsorship application at the Appeal Division. IRPA does not provide for a stay of removal while the appeal is being processed.
IRREPARABLE HARM'
[16] The Applicant has not shown that he would suffer irreparable harm if his removal occurs.
[17] This Court has held that irreparable harm is a strict test in which serious likelihood or jeopardy to the applicant's life or safety must be demonstrated. The Applicant in this case has not demonstrated jeopardy to his life or safety. (Duve v. Canada(Minister of Citizenship and Immigration), [1996] F.C.J. No. 387 (F.C.T.D.) (QL) at para. 22; Mikhailov v. Canada ((Minister of Citizenship and Immigration), [2000] F.C.J. No. 642 (F.C.T.D.) (QL) at paras. 12-13; Frankowski v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 935 (F.C.T.D.) (QL) at para. 7; Csanyi v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 758 (F.C.T.D.) (QL) at para. 4; Melo v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 403 (F.C.T.D.) (QL) paras. 20-21; Akyol v. Canada (Minister of Citizenship and Immigration), 2003 FC 931, [2003] F.C.J. No. 1182 (QL), para. 6.)
[18] In Melo, above, the Court held:
...if the phrase irreparable harm is to retain any meaning at all, it must refer to some prejudice beyond that which is inherent in the notion of deportation itself. To be deported is to lose your job, to be separated from familiar faces and places. It is accompanied by enforced separation and heartbreak.
[19] The Applicant submitted a partially illegible handwritten doctor's note to establish that his wife is under a lot of stress due to family situation; however, the Respondent submits that this does not amount to a serious likelihood or jeopardy to the Applicant's life or safety. (Applicant's Motion Record, Affidavit of Nandalall Ramratran sworn March 21, 2006(Applicant's Affidavit), Exhibit "C", p. 13; IRPA, s. 52(2))
[20] The Applicant has not demonstrated that there is a serious likelihood of jeopardy to his life or safety. He has had a Convention refugee hearing; the Refugee Division denied his claim. He did not apply for leave and judicial review of this decision. He submitted no new evidence in his PRRA application and this was denied. He applied for a deferral of his removal order and this was not granted. His application for leave and judicial review of the PRRA negative decision shows no legal error in the PRRA decision.
[21] As a stay or interlocutory injunction is determined prior to the determination of the issues on judicial review, the evidence in support of irreparable harm must be clear and non-speculative; the Court must be satisfied that irreparable harm will occur if the relief sought is not granted. In this case, there is no such clear and non-speculative evidence that the mere fact that the Applicant is going to be deported will cause irreparable harm to any party. (Applicant's Record, Applicant's Affidavit, pp. 7-10; John v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 915 (F.C.T.D.) (QL); Wade v. Canada(Minister of Citizenship and Immigration), [1995] F.C.J. No. 579, paras. 3-4.
BALANCE OF CONVENIENCE
[22] The inconvenience that the Applicant may suffer as a result of his removal from Canada does not outweigh the public interest in executing removal orders as soon as reasonably practicable in accordance with s. 48 of IRPA.
[23] The public interest is to be taken into account and weighed together with the interests of private litigants. (Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110, at 146)
[24] The Applicant has not met the third aspect of the tri-partite test, insofar as the balance of convenience favours the Minister and not the Applicant.
[25] The Applicant is seeking extraordinary equitable relief. It is trite law that the public interest must be taken into consideration when evaluating this last criterion. In order to demonstrate that the balance of convenience favours the Applicant, the latter should demonstrate that there is a public interest not to remove him as scheduled. (RJR-MacDonald Inc. v. Canada, above; Blum v. Canada(Minister of Citizenship and Immigration) (1994), 90 F.T.R. 54, [1994] F.C.J. No. 1990 (QL))
[26] Nothing demonstrates that the balance of convenience favours the non-application of the law nor outweighs the public interest. The Applicant has been here since 2003, he has had a negative refugee determination, did not apply for leave and for judicial review. His application for permanent resident status was denied. The balance favours the Minister in these circumstances. Therefore, the motion for stay of removal is dismissed.
ORDER
THIS COURT ORDERS that
1. The style of cause be amended to name the Minister of Public Safety and Emergency Preparedness and the Minister of Citizenship and Immigration as the Respondents. (Public Service Rearrangement and Transfer of Duties Act, R.S.C. 1985, c. P-34; Order in Council, P.C. 2003-2061; Order in Council, P.C. 2003-2063; Department of Public Safety and Emergency Preparedness Act, S.C. 2005, c. 10, s.7; Order in Council, P.C. 2005-482; see Varadarajah v. Canada (Minister of Citizenship and Immigration), (13 January 2004) IMM-9971-03 (F.C.T.D), Justice Carolyn Layden-Stevenson - Order to Amend Style of Cause.
2. This motion for a stay of removal be dismissed.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1438-06
STYLEOF CAUSE: NANDALALL RAMRATRAN
v.
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS AND THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: March 23, 2006 by Teleconference
APPEARANCES:
| Ms. Elizabeth Jaszi
|
|
| Mr. Asha Gafar |
SOLICITORS OF RECORD:
| ELIZABETH JASZI Barrister and Solicitor Mississauga, Ontario
|
|
| John H. Sims, Q.C. Deputy Minister of Justice and Deputy Attorney General |