Ottawa, Ontario, September 19, 2006
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
REASONS FOR ORDER AND ORDER
[1] In three days time, Ms. Simmons is scheduled to be removed to St. Vincent, from where she ran away some years ago to escape her vicious husband. St. Vincent is a small island, and the evidence, as imperfect as it is, indicates there are no women’s shelters on the island.
[2] Ms. Simmons’ application for refugee status, or as a person otherwise in need of protection, was dismissed in 2004. Since then, in accordance with the Immigration and Refugee Protection Act (IRPA) she sought a pre-removal risk assessment (PRRA) pursuant to Sections 112 and following thereof. She also asked that she be permitted to apply for permanent residence status while remaining in Canada because of humanitarian and compassionate considerations (H&C), as contemplated by Section 25 of the Act. That application has been outstanding for some fifteen months.
[3] The PRRA was negative. She has applied for leave and judicial review of that decision. That application does not stay her removal. An enforcement officer was charged with the responsibility of removing her from Canada as soon as “reasonably practicable”, to use the words of Section 48 of the Act. The enforcement officer was asked to defer the removal until a final decision on her application to this Court on the negative PRRA decision, and, as well, to await the outcome of the H&C application. She refused, and so Ms. Simmons has moved this Court for a judicial stay. Her motion is granted.
[4] With respect to deferring her removal pending the outcome of the application for judicial review of the PRRA, a psychological assessment, and update were filed. The enforcement officer passed on those reports to Medical Overseas Services who are often retained in these matters. One of the doctors sent his assessment to the enforcement officer who in her notes simply says that he had reviewed the reports “and did not agree with the opinion. He further states that basic medical care is available in St. Vincent.”
[5] It is well established that a stay is an extraordinary remedy not to be granted unless there is a serious underlying issue, risk of irreparable harm and the balance of convenience favours the applicant (Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (FCA)).
[6] As to the serious issue, R.J.R.-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 is authority for the proposition that unless the claim on the merits appears to be frivolous or vexatious, a motions judge must, as a general rule, consider the second and third parts of the tri-partite test.
[7] In this instance, the enforcement officer relied on a doctor’s opinion which was not put to Ms. Simmons. Indeed, we do not know what was in the opinion. It is certainly not frivolous to argue, as Ms. Simmons has, that she should have been given an opportunity to see the material, or at least the gist of it, and to have the opportunity to comment thereon. If visa officers have concerns with respect to prospective immigrants, they must disclose those concerns in order to give the applicant an opportunity to respond in a meaningful way (Khyaja v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 703 (QL), Guo v. Canada (Minister of Citizenship and Immigration), 2006 FC 626, [2006] F.C.J. No. 795). Can it be that the same duty is not owed when irreparable harm is in issue? See Pancharatnam v. Canada (Solicitor General) 2004 FC 867, [2004] F.C.J. No. 1056.
[8] A second serious issue is the pending H&C application. The enforcement officer was willing to defer removal for a few months so that Ms. Simmons would not lose a rental deposit, provided she paid her own way back to St. Vincent. Yet she was not prepared to await the outcome of the H&C application. She pointed out, which is trite but true, that a pending H&C application does not result in an administrative stay. However, that was not the issue she was required to consider. She should have considered whether the application had been filed in a timely matter and whether the reason there was no decision was a backlog in the system. She took the view that pending H&C applications took one to three years. She did not explain where she got those figures. Information from Citizenship and Immigration’s website suggests, albeit with nuances, that such an application normally takes fifteen months. She had the discretion to await the pending decision on the H&C application (Poyanipur v. Canada (Minister of Citizenship and Immigration) (1995), 116 F.T.R. 4, Simoës v. Canada (Minister of Citizenship and Immigration) (2000), 187 F.T.R. 219). It is arguable she fettered that discretion.
[9] As to irreparable harm, Ms. Simmons’ fear thereof is at the very heart of her PRRA and H&C applications. Her evidence has always been accepted. She was regularly beaten, and physically and sexually abused. Her husband came to her place of work and ripped off her clothes in front of co-workers. She is entitled to her day in a Canadian court.
[10] The balance of convenience certainly favours Ms. Simmons, particularly taking into account that she did not file a last minute H&C application. It has been outstanding for over fifteen months.
ORDER
THIS COURT ORDERS that:
1. The motion is granted.
2. The removal of Ms. Simmons scheduled for 22 September 2006 is stayed until the final disposition of the application for leave and for judicial review herein.
“Sean Harrington”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5042-06
STYLE OF CAUSE: NICOLE AMANDA SIMMONS v.
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 18, 2006
AND ORDER: Mr. Justice Harrington
APPEARANCES:
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Osborne G. Barnwell
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Michael Butterfield
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SOLICITORS OF RECORD:
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Osborne G. Barnwell Barrister & Solicitor
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John H. Sims, Q.C. Deputy Attorney General of Canada
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