IMM-833-06
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER
[1] These are the reasons for my order to dismiss the Applicant's motion for a stay of removal, dated February 15, 2006.
[2] The Applicant, Mr. Rafael Pelaez Casanova, seeks a stay of the execution of his removal order pending final determination of his application for leave and judicial review of the negative decision made on the 13th of December 2005 by the Pre-Removal Risk Assessment Officer. That decision was communicated to the Applicant on the 19th day of January 2006. This motion, filed on February 9th, 2006, is related to the leave application in file IMM-379-06.
[3] The Applicant also brought a second motion for a stay until such time as his pending Application for leave and judicial review of the decision of the removal officer is finally determined. The basis of this underlying application (file number IMM-833-06) is the decision not to defer removal of the Applicant pending a motion to re-open his Refugee claim based on the decision of this Court in Thamotharem v. Canada (M.C.I.) (2006 FC 16), with respect to Guideline 7 of the Refugee Board. This motion was filed on February 13th, 2006.
[4] The Applicant is a Mexican citizen. He alleged that he was not allowed to conclude his studies and subsequently lost his job because of his political involvement with the National Action Party (PAN). He also claimed that he was attacked twice by supporters of the Institutional Revolutionary Party (PRI), that his cousin was killed and he was seriously injured as a result of being run over by a car while riding a motorcycle, and that he was kidnapped at gunpoint and threatened that he would be killed if he did not stop campaigning for the PAN. As a result, he decided to leave Mexico and arrived in Canada on February 3rd, 2003. He did not receive a visa until August 2nd, 2003 and made a refugee protection claim on June 24th, 2003.
[5] The Immigration and Refugee Board found that the Applicant was neither a Convention refugee nor a person in need of protection, essentially for lack of credibility. An application for leave to review that decision was dismissed by this Court on October 4th, 2004, the Applicant not having perfected his application. The Applicant then applied for a Pre-Removal Risk Assessment ("PRRA"), wherein he repeated the same story that had been previously determined not to be credible; that application was refused.
[6] As stated previously, the Applicant was given a copy of the negative decision on January 19th, 2006, and was advised on that same day that his removal would take place on February 16th, 2006.
[7] In a letter dated February 8th, 2006, addressed to the Court, counsel for the Applicant indicated that a request to the removals officer to defer the Applicant's removal will be made, and that further litigation may arise from that request. The Applicant's request to defer his removal is set out in a letter from his counsel dated Saturday, February 11th, 2006; it was actually sent to the officer on the morning of Monday, February 13th, 2006. The letter purports to ask the officer to defer removal because the Applicant has forwarded a motion to the Refugee Division to re-open the Applicant's refugee claim, on the basis of the decision of Justice Blanchard in Thamotharem, above. The letter indicates that if response is not received by 11:00 a.m. on February 13th, 2006 (i.e. less that four hours after the letter was faxed, and two hours after the normal opening of business), the Applicant will treat the request as refused. The Applicant now seeks to challenge this "refusal" to defer the removal, but there is no evidence that a motion to re-open his refugee claim has ever been filed.
[8] Needless to say, counsel for the Respondent strongly argued that this Court should not even entertain these last minute applications for a stay. Despite valiant efforts made by counsel for the Applicant to explain the lateness of his applications, I have not been convinced that it was totally beyond his control to bring these applications in a more timely manner. The Applicant knew of his removal date since January 19th, 2006, yet he waited until February 9th, 2006 to ask that his removal be deferred. I can appreciate that illness, heavy workload and the vagaries of a sole practitioner are all factors that sometimes explain a short delay, but they cannot account for a three week delay in bringing such an important application for what is, after all, an exceptional remedy.
[9] I am also deeply concerned by the fact that these last minute applications leave counsel for the Respondent very little time to receive instructions from their clients; this is not only unfair, but it is also not in the best interests of the administration of justice. This, in and of itself, would be sufficient to dispose of these applications.
[10] This Court has indicated on a number of occasions its reluctance to hear last minute applications for stays of removal. As noted by Justice Reed in Membreno-Garcia v. Canada (M.E.I.), [1992] 3 F.C. 306, [1992] F.C.J. No. 535 (QL), at par. 22:
If the applicant has known of the decision which underlies the challenge to the deportation order (or departure notice) for some time and has not sought leave to commence a section 18 proceeding until the very last moment, then there is reason to assume that the seeking of leave and the deportation order is primarily a "time-buying" manoeuvre. (...) [t]he bringing of a request for a stay at the very last minute is often in itself reason to refuse the request.
See also: Nagy v. Canada(M.C.I.), IMM-2155-00 (F.C.T.D.); Umokoro v. Canada (M.C.I.), IMM-1430-99 (F.C.T.D.); Shahranpour v. Canada (M.C.I.), [1995] F.C.J. No. 1654, (1995), 33 Imm.L.R.(2d) 107 (F.C.T.D.); Membreno-Garcia v. Canada (M.E.I.), [1992] 3 F.C. 306 (F.C.T.D.); Korogodova v.Canada (M.C.I.), IMM0376-01 (F.C.T.D.); Maladeen v. Canada (M.C.I.), IMM-3164-00 (F.C.T.D.).
[11] As a result, I am satisfied that this Court should not exercise its discretion in favour of the Applicant.
[12] That being said, I am also of the view that this application should be dismissed on the merit. Having duly considered the Applicant's oral and written submissions, I come to the conclusion that he has not met the tripartite test established by the Federal Court of Appeal in Toth v. Canada (M.E.I.), [1988] F.C.J. No. 587, 86 N.R. 302. In other words, the Applicant has not demonstrated: 1) a serious issue to be tried; 2) that he will suffer irreparable harm if the deportation order is executed, and 3) that the balance of convenience favours him instead of the Minister.
[13] First of all, Applicant's counsel conceded that he did not have much of an argument with respect to Guideline number 7 of the Refugee Board. It appears from an affidavit filed by the Respondent that the Applicant's counsel was asked at the beginning of the hearing by the Refugee Board member if he wanted to proceed first with his questions to the Applicant, which he did. This is not based on pure recollection, but on the tapes of the hearing. As a result, there is no evidence that Guideline 7 was applied or that the Refugee Board member fettered its discretion as a result of that Guideline. There is no need, therefore, to consider the application of the Thamotharem decision to this case.
[14] Moreover, the discretion that a removal officer is entitled to exercise is quite limited, as a removal order must be enforced "as soon as is reasonably practicable" (Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 48(2)). This has been defined as conferring a limited discretion on the removal officer to consider factors such as illness, pending humanitarian and compassionate applications that were brought on a timely basis and have yet to be resolved due to backlogs in the system, and other impediments to traveling (see, for ex., Simoes et al. v. Canada (M.C.I.)(2000), 187 F.T.R. 219, 7 Imm. L.R.(3d) 141; Paterson v. Canada(M.C.I.)(2000), 4 Imm. L.R.(3d) 65; Jmakina v. Canada(M.C.I.), [1999] F.C.J. No. 1680, (1999), 3 Imm. L.R.(3d) 198). A purported motion to re-open the Applicant's refugee claim does not raise a serious issue, especially when there is no evidence that a motion to re-open has been filed.
[15] The Applicant also contended that the PRRA officer erred in not considering new evidence, consisting essentially of a sworn declaration of the Applicant's mother confirming that she was still receiving telephone calls threatening him, of a denunciation made by the Applicant's brother according to which unknown individuals had warned him that if the Applicant was to return to Mexico, he will lament it, of publications from Amnesty International, Human Rights Watch and various internet news articles, and e-mails written by colleagues and an ex-girlfriend advising the Applicant not to return to Mexico.
[16] Despite the fact that the PRRA officer erred by checking a box indicating that no new evidence had been filed, it appears from a close reading of his reasons that he did consider this "new" evidence in detail. Not only did he indicate why little weight was given to this evidence, but he also gave cogent reasons why the evidence did not offset the credibility concerns of the Refugee Board. It is well established that this Court will not interfere with the assessment and weighing of the evidence by the PRRA officer, unless it can be shown that his conclusions are patently unreasonable. In the present circumstances, I am unable to find any error of that nature in the PRRA officer's reasons.
[17] Furthermore, the PRRA officer found that the Applicant could access state protection, and that he had an internal flight alternative in Mexico. Either of these findings is sufficient to dispose of the PRRA application, and yet, the Applicant has failed to demonstrate that these findings are in error. It was certainly not patently unreasonable for the PRRA officer to find that the Applicant has provided insufficient evidence to demonstrate a change in country conditions since the Board's decision. The situation may not be perfect but, Mexico is not a state of "profound unrest", to use the words of Justice Desjardins in Mendivil v. Canada(Secretary of State), [1994] F.C.J. No. 2021, (1994), 23 Imm. L.R.(2nd) 225 (F.C.A.).
[18] As for irreparable harm, this Court has held on numerous occasions that when the Applicant's account has been rejected both by the Refugee Board and a PRRA officer, this same account cannot serve as a basis for an argument supporting irreparable harm in a stay application (see, for ex., Singh v. Canada (M.C.I.), 2005 FC 145; Akyol v. Canada (M.C.I.), 2003 FC 931, [2003] F.C.J. No. 1182 (QL)).
[19] Finally, the Applicant has not met the third part of the tri-partite test, insofar as the balance of convenience favours the Minister and not the Applicant. There is a public interest in enforcing the Immigration and Refugee Protection Act, and it is not outweighed by any inconvenience which the Applicant may suffer as a result of his removal from Canada. As the Federal Court of Appeal has stated in Selliah v. Canada(M.C.I.), 2004 FCA 261:
[The Applicants] have had three negative administrative decisions, which have all been upheld by the Federal Court. It is nearly four years since they first arrived here. In my view, the balance of convenience does not favour delaying further the discharge of either their duty, as persons subject to an enforceable removal order, to leave Canada immediately, or the Minister's duty to remove them as soon as reasonably practicable...This is not simply a question of administrative convenience, but implicates the integrity and fairness of, and public confidence in, Canada's system of immigration control.
[20] Accordingly, the motion of the Applicant is dismissed.
"Yves de Montigny"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-379-06 / IMM-833-06
STYLE OF CAUSE: RAFAEL PELAEZ CASANOVA v MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: February 14, 2006
REASONS FOR ORDER: de Montigny J.
APPEARANCES:
| Mr. Joel Etienne
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| Mr. David Tyndale
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SOLICITORS OF RECORD:
| Mr. Joel Etienne Barrister & Solicitor Toronto, Ontario |
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John H. Sims, Q.C. Deputy Attorney General of Canada
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