Toronto, Ontario, April 17, 2007
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
BACKGROUND
[1] The Applicant seeks a stay of her removal to Grenada scheduled for April 20, 2007. The underlying application on this motion is her negative Pre-Removal Risk Assessment (PRRA), dated February 21, 2007, and served on the Applicant together with a Direction to Report on March 27, 2007. (Direction to Report, in Applicant’s Record, p. 57; PRRA decision, in Applicant’s Record, p. 47-56.)
[2] The Applicant entered Canada on September 19, 2001. She made a refugee claim, which was refused in March 2004. The Applicant’s application for leave and for judicial review of this decision was denied by this Court in August 2004 (IMM-4509-04). (Refugee Protection Division (RPD) decision, in Applicant’s Record, p. 14-19.)
[3] The Applicant made a PRRA application on the basis of her fear of domestic violence at the hands of her ex-partner. This was the same allegation which was before the RPD. The PRRA was refused on February 21, 2007. The PRRA officer found that the Applicant had not submitted any new evidence to support a different conclusion from that of the RPD. A review of the documentary evidence submitted by the Applicant demonstrates that the evidence which is dated pre-dates her RPD claim. (PRRA decision, in Applicant’s Record, p. 47-56; PRRA application and submissions, in Applicant’s Record, p. 20-30.)
[4] The PRRA officer acknowledged that there is evidence showing that domestic violence continues to be a problem in Grenada; however, the documentary evidence before the officer also showed that Grenada is making serious efforts to deal with this problem, including the following:
· Grenada has various governmental and non-governmental means to offer protection to women and children facing domestic violence;
· There is domestic violence legislation which provides for penalties, jail sentences and restraining orders;
· A public awareness and sensitization campaign has been put into place for police and social workers;
· A Domestic Violence Unit has begun to be set up by the Ministry of Gender and Family Affairs, which will provide on-site counselling and legal services;
· Every police station will have one police officer trained in domestic violence who will deal with the Unit;
· Grenada is parliamentary democracy with constitutional rights.
(PRRA decision, in Applicant’s Record, p. 54.)
[5] On the basis of the evidence before the officer, the officer concluded that “although no state can provide safety to every citizen all the time, I am of the opinion that sufficient safeguards exist in Grenada for the applicant that would provide her with adequate protection if required.” (PRRA decision, in Applicant’s Record, p. 55.)
[6] The Applicant made a humanitarian and compassionate grounds (H&C) application, which Citizenship and Immigration Canada (CIC) received on February 5, 2007, and which started to be processed on February 20, 2007. (CIC information, in Applicant’s Record, p. 45.)
[7] The Applicant has seven children, ranging in ages from 17 to 31. The youngest child, Barry, who is 17, lives in the United States, with his father and grandmother. The other four children (Glenda, Denise, Allison, and Nicole), who are all adults, live in Grenada and have children of their own, and the Applicant is not in touch with her other two children who are also adults (Rondell and Vondell). (Applicant’s Affidavit, in Applicant’s Record, p. 8-9, para 14-16.)
ISSUE
[8] Has the Applicant satisfied the tripartite test warranting a stay of her removal?
ANALYSIS
SERIOUS ISSUE
[9] The Applicant’s assertion that the officer’s failure to refer to a more recent Response to Information Report (RIR) —i.e., a 2005 instead of a 2003 RIR--does not raise a serious issue. First, the 2005 RIR was not provided to the officer by the Applicant. (PRRA evidence, in Applicant’s Record, p. 30.)
[10] Second, the officer did refer to a 2003 RIR which set out various efforts that Grenada is taking to deal with domestic violence, such as Domestic Violence Unit, a hotline for women in distress, a women’s shelter. Contrary to the Applicant’s suggestion, this document recognizes that women continue to experience problems and that protection is imperfect. (2003 RIR, in Applicant’s Record, p. 58-61.)
[11] Moreover, the 2005 RIR does not provide any fundamentally new information than the 2003 RIR. The Applicant contends that this 2005 document establishes that domestic violence is a problem in Grenada; however, this was acknowledged in the 2003 document, and by the PRRA officer. The 2005 document also states that there is a law which prohibits domestic violence and provides penalties and “in practice, the court enforced the law.” Although the 2005 document discusses problems with the law’s implementation, the document nevertheless concludes as follows:
Grenada faces some serious challenges in the area of domestic violence. Women in situations of abuse are not, however, without resources. A woman can seek protection through her network of family and friends, the police, an NGO such as the LACC, government-run programs such as Cedars shelter, or with legal remedies such as pressing charges and seeking protection orders in court.
(2005 RIR, in Applicant’s Record, p. 64-67.)
[12] This Court has considered but rejected similar arguments, dealing with a PRRA officer’s conclusion on state protection and domestic violence:
[14] The Applicant next argues that the decision was perverse and was made without regard to the evidence. Specifically, the Applicant submits that the failure of the PRRA Officer to make explicit reference to the documentary evidence that indicates a number of serious problems with providing state protection to victims of spousal abuse.
[15] A finding of a PRRA Officer on country conditions is a finding of fact which has been held to be subject to review on a standard of patent unreasonableness (see for example, Kim v. Canada (Minister of Citizenship and Immigration), 2005 FC 437 at para. 19, 272 F.T.R. 62. Considerable deference is owed to the PRRA Officer's factual determination that country conditions in St. Vincent. The Court should only intervene if the decision was perverse, capricious or made without regard to the evidence.
[16] Once again, I must look at the issue with regard to the role of the PRRA Officer and the burden of the Applicant. The question for the PRRA Officer is whether the Applicant has established that the situation has changed since the RPD rendered its decision. First, I note that, while the documentary evidence is dated after the RPD decision, it does not contain any reference to the situation worsening over the "gap" period. Further, the submissions of counsel made to the PRRA Officer do not identify any changes. Rather, counsel appears to have merely provided arguments as to why the RPD erred in its conclusion. The PRRA Officer was, in effect, being asked to reverse the decision of the RPD on state protection. The evidence and submissions did not address the question of changed conditions. In short, the Applicant did not demonstrate that, although she was not found to be at risk as of the date of the RPD decision, she was now.
[17] Further, the evidence referred to by the Applicant consists of passages extracted from documents that also include evidence of positive developments and continuing efforts (with some effectiveness) in addressing the problems of domestic violence. In her reasons, the PRRA Officer acknowledged that violence against women continues to be a problem. Thus, I am satisfied that she understood and appreciated both the positive and negative evidence before her. Given that this evidence was not personal to the Applicant, the PRRA Officer did not err by failing to make explicit reference to every negative comment in the country condition documentation.
(Cupid v. Canada (Minister of Citizenship and Immigration), 2007 FC 176, [2007] F.C.J. No. 244 (QL).)
[13] Contrary to the Applicant’s argument, the PRRA officer applied the proper standard for state protection. The Applicant asserts that the officer’s reliance on the Kadenko decision is “dated’; however, that decision is a Federal Court of Appeal decision that is binding and authoritative. It was open to the officer to refer to this decision and to the principles it stands for. This decision continues to be relied on by this Court. (Kadenko v. Canada (Solicitor General) (1996), 143 D.L.R. (4th) 532 (F.C.A.), leave to appeal to S.C.C. refused, [1996] S.C.C.A. No. 612; reference is also made to Cupid, above, at para 22.)
[14] With respect to the Applicant’s reliance on the Mitchell decision, this Court has stated the following:
[15] The Applicant relied on this Court's decisions in Mitchell v. Canada (Minister of Citizenship and Immigration), 2006 FC 133, [2006] F.C.J. No. 185 (QL) and in Simpson v. Canada (Minister of Citizenship and Immigration), 2006 FC 970, [2006] F.C.J. No. 1224 (QL). These cases are easily distinguished because in both cases there was evidence from a Jamaican government official responsible for women's issues that women in Jamaica could not be protected from domestic violence. In both cases that evidence was ignored.
[16] In the present case there is no such admission in respect of Trinidad and Tobago. Further, there is no evidence or basis to suggest that the Board failed to consider that there was evidence pro and con state protection.
[17] Under these circumstances, there is no reason to overturn the Board's conclusions on state protection.
(Ramkissoon v. Canada (Minister of Citizenship and Immigration), 2006 FC 1071, [2006] F.C.J. No. 1346 (QL).)
[15] Similarly, in the case at bar, there is no evidence from a Grenadan official responsible for women’s issues that women in Grenada cannot be protected from domestic violence.
[16] Furthermore, this Court has rejected the Applicant’s suggestion that the state must actually provide protection on numerous occasions. As Justice J. François Lemieux, cited Justice Frederick Gibson in Canada (Minister of Citizenship and Immigration) v. Olah, 2002 FCT 595, [2002] F.C.J. No. 785 (QL):
[9] … Gibson J. in Smirnov states at page 5:
… It is a reality of modern-day life that protection offered is sometimes ineffective. Many incidents of harassment and/or discrimination can be effected in a manner that renders effective investigation and protection very difficult. ... In all such circumstances, even the most effective, well-resourced and highly motivated police forces will have difficulty providing effective protection. This Court should not impose on other states a standard of "effective" protection that police forces in our own country, regrettably, sometimes only aspire to.
(Emphasis added.)
(Reference is also made to: Danquah v. Canada (Minister of Citizenship and Immigration), 2003 FC 832, [2003] F.C.J. (QL); Syed v. Canada (Minister of Citizenship and Immigration), (2000) 195 F.T.R. 39; [2000] F.C.J. No. 1556 (QL); Zhuravlvev v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 3 (T.D.), [2000] F.C.J. No. 507 (QL).)
[17] Thus, the jurisprudence of this Court and of the Supreme Court of Canada in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, supports the PRRA officer’s understanding that there is adequate state protection where the state is making serious efforts to provide protection. In Adewumi v. Canada (Minister of citizenship and Immigration), 2002 FCT 258, [2002 F.C.J. No. 337 (QL), Justice Eleanor Dawson has stated:
[10] …
ii) Where the state is in effective control of its territory, has military, police and civil authority in place, and makes a serious effort to protect its citizens, the simple fact that it is not always successful will not be enough to establish that victims are unable to avail themselves of state protection.
[18] As the Supreme Court confirmed, the state is presumed capable of protecting its citizens and refugee claimants must provide “clear and convincing confirmation” of the state’s inability or unwillingness to protect them. The Applicant has not done so in this case. Moreover, this Court has established that if there is evidence upon which the tribunal could conclude that state protection is available to the Applicant, the Court should not intervene. In this case, there was evidence showing that Grenada was taking active steps in combating domestic violence. The PRRA officer’s decision is supported by the evidence and there is therefore no reviewable error. (Jahan v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 987 (F.C.T.D.) (QL); Ward, above.)
[19] The Federal Court of Appeal has stipulated that “a claimant must do more than simply show that he or she went to see some members of the police force and that his or her efforts were unsuccessful.” (Kadenko, above.)
[20] As the Federal Court of Appeal has reasoned:
When the state in question is a democratic state, as in the case at bar, the claimant must do more than simply show that he or she went to see some members of the police force and that his or her efforts were unsuccessful. The burden of proof that rests on the claimant is, in a way, directly proportional to the level of democracy in the state in question: the more democratic the state's institutions, the more the claimant must have done to exhaust all the courses of action open to him or her (See Canada (Minister of Employment and Immigration) v. Satiacum (1989), 99 N.R. 171, at p. 176 (F.C.A.), approved by Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at p. 725, 103 D.L.R. (4th) 1.)
(Kadenko, above.)
[21] Further, it was open to the officer to note that perfect state protection cannot be guaranteed at all times.
[22] In effect, the PRRA officer’s conclusion was reasonably open, was supported by the documentary evidence, as well as the principles set out by this Court with respect to state protection.
IRREPARABLE HARM
[23] The Federal Court of Appeal has found, on several occasions, that the mere presence of a serious issue is not, in and of itself, determinative of irreparable harm. (Selliah v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1200 (F.C.A.) (QL); El Ouardi v. Canada (Solicitor General), 2005 FCA 42, [2005] F.C.J. No. 189 (QL); Sivagnanansuntharam v. Canada (Minister of Citizenship and Immigration), 2004 FCA 70, [2004] F.C.J. No. 325 (QL); Tesoro v. Canada (Minister of Citizenship and Immigration), 2005 FCA 148, [2004] F.C.J. No. 698 (QL).)
[24] Similarly, there have been cases of this Court which have held that, if the underlying application on a PRRA is moot, this constitutes irreparable harm. Nevertheless, the Federal Court of Appeal has rejected this argument on several occasions. (Selliah, above, at para. 20; El Ouardi, above, at para 8.)
[25] As Justice Marshall Rothstein in El Ouardi, above, held, on behalf of the Federal Court of Appeal:
[8] The appellant argues that her appeal will be rendered nugatory if the stay is not granted, resulting in irreparable harm. The difficulty with the argument that an appeal being rendered nugatory amounts to irreparable harm is that if it is adopted as a principle, it would apply to virtually all removal cases in which a stay is sought and would essentially deprive the Court of the discretion to decide questions of irreparable harm on the facts of each case. In some cases, the fact that an appeal is rendered nugatory will amount to irreparable harm. In others, it will not. The material indicates that the appellant's husband may apply to sponsor her return to Canada. While removal will cause hardship, it is not clear that rendering the appeal nugatory will result in irreparable harm.
[26] This Court has made similar findings in numerous cases. For example, in Akyol v. Canada (Minister of Citizenship and Immigration), 2003 FC 931, [2003] F.C.J. No. 1182 (QL), Justice Luc Martineau (who also decided Figurado v. Canada (Minister of Citizenship and Immigration), 2005 FC 347, [2005] F.C.J. No. 458 (QL)), stated as follows:
[11] Sixth, the deportation of individuals while they have outstanding leave applications and/or other litigation before the Court, is not a serious issue nor does it constitute irreparable harm: Ward v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 86 (T.D.) at para. 12; and Owusu v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1166 (T.D.). I also note that the application for leave and judicial review will continue regardless of where the applicants are located, and that they can provide instructions to counsel as to how to proceed with the litigation from the U.S. or, should they end up there, Turkey…
(Reference is also made to: Kim v. Canada (Minister of Citizenship and Immigration), 2003 FCT 321, [2003] F.C.J. No. 452 (QL); Ryan v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1413, [2001] F.C.J. No. 1939 (QL), at para. 8.)
[27] In addition, Justice Judith Snider considered but rejected a similar argument to the one advanced by the Applicant and ultimately concluded that the application is not rendered nugatory by removal. In Nalliah v. Canada (Minister of Citizenship and Immigration), [2005] 3 F.C.R. 210, [2004] F.C.J. No. 2005 (QL), Justice Snider stated the following:
[30] The second branch of Mr. Nalliah's argument is that the loss of the right to continue the litigation constitutes irreparable harm. Contrary to these submissions, if the injunction is refused, their right to an effective remedy will not be rendered nugatory. As Mr. Justice O'Reilly stated in Kim v. Canada (Minister of Citizenship and Immigration) (2003), 33 Imm. L.R. (3d) 95 (F.C.T.D.), at paragraph 9: "nothing in the Act or the Rules would interfere with the entitlement of a PRRA applicant, who has been removed from Canada and who is successful on judicial review, to have that application reconsidered".
[31] In Selliah v. Canada (Minister of Citizenship and Immigration), 2004 FCA 261, at paragraph 20, Justice Evans of the Court of Appeal stated:
Since the appeal can be ably conducted by experienced counsel in the absence of the appellants and since, if the appeal is successful, the appellants will probably be permitted to return to Canada at public expense, I cannot accept that removal renders their right of appeal nugatory.
[32] The cases of Suresh and Resulaj, referred to by Mr. Nalliah may be distinguished on the basis that, in both of those cases, there was significant evidence supporting a personalized risk. From a review of the jurisprudence, I conclude that irreparable harm cannot be solely founded on difficulty in pursuing legal rights of challenge once removed from Canada.
[28] In addition, it was clearly not the intent of Parliament to allow all negative PRRA recipients to remain in Canada, pending the outcome of any litigation related to their PRRA decisions. Parliament chose to provide a statutory stay of removal pending the outcome of an application for leave of a negative refugee decision by the RPD. Parliament further envisioned statutory stays in certain specified circumstances related to PRRAs, as set out in R. 232 of Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations), none of which included applications for leave challenging negative PRRA decisions. (Regulations, ss. 231-232.)
[29] Parliament clearly intended that persons, whose PRRA applications had been rejected, could be removed. This is also consistent with s.48 of the IRPA, which provides that the Minister is obligated to effect valid removal orders as soon as practically possible. Any other interpretation would place the rights of a PRRA applicant, ahead of the legal obligation on the Minister, rights and obligations which Parliament has intentionally balanced through the statutory provisions in IRPA.
[30] Thus, the proper, persuasive, and authoritative approach is the one articulated by the Federal Court of Appeal that has held that removing an applicant from Canada while his appeal of his negative PRRA is pending, does not render his/her rights nugatory. (Selliah, above, at para. 20; El Ouardi, above.)
[31] Even if the Court accepts that a PRRA application for judicial review may be moot if the applicant has been removed, this does not necessarily result in irreparable harm. This Court and the Federal Court of Appeal have indicated that there must be something more in order to establish irreparable harm-e.g., evidence of personalized risk. As Justice Dawson determined in Ryan, above: “…it seems to me that something more than mootness must be established in order to constitute irreparable harm. Otherwise, by definition irreparable harm would exist whenever the validity of a decision not to defer removal is put in issue.”
[32] The Federal Court of Appeal has also confirmed that the possibility of mootness cannot always equate to irreparable harm because every stay would then give rise to irreparable harm. This is certainly not the intention of Parliament, which specifically chose not to include outstanding PRRA litigation as a basis for a statutory stay. (El Ouardi, above.)
[33] The Applicant’s H&C application, made in January 2007, will continue to be processed in the Applicant’s absence. There is no evidence to support the Applicant’s contention that her H&C application will be refused if she is removed.
[34] The Applicant suggests that she has nowhere to live in Grenada; however, she has four adult children who live in Grenada, and several grandchildren. She has a community there.
[35] In effect, the Applicant has not met the test for irreparable harm. This Court has held that “irreparable harm must not be speculative nor can it be based on a series of possibilities. The Court must be satisfied that the irreparable harm will occur if the relief sought is not granted”. (Akyol, above, at para 6-7.)
[36] There is no substantive evidence establishing that the Applicant will be at risk if she is returned to Grenada. It is noteworthy that her allegations of risk of have twice been rejected. Her refugee claim was refused, and this Court denied leave on her application for leave and for the judicial review. In addition, her PRRA was refused. In this regard, in Salman v. Canada (Minister of Citizenship and Immigration), 2001 FCT 507, [2001] F.C.J. No. 785 (QL), at para. 6, this Court has indicated: “The applicant was afforded three opportunities to show that he would face personal risk if he were deported to his country of origin and was not successful. Those three successive assessments, made by three different immigration officers are not unreasonable and cannot be disregarded…” (Reference is also made to: Tudila-Litvin v. Canada (Minister for Public Safety and Emergency Preparedness), 207 FC 105, [2007] F.C.J. No. 182 (QL).)
[37] Further, in Melo v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 403, as stated by Justice Denis Pelletier:
[21] …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. (Emphasis added.)
BALANCE OF CONVENIENCE
[38] Finally, contrary to the Applicant’s contention, the balance of convenience favours the Respondent. Section 48 of the IRPA provides that an enforceable removal order must be enforced as soon as is reasonably practicable.
[39] The Applicant has had a negative refugee claim and a negative PRRA. In this regard, the words of Justice John Maxwell Evans in Selliah, above, writing for the Federal Court of Appeal, are apt:
[21] Counsel says that since the appellants have no criminal record, are not security concerns, and are financially established and socially integrated in Canada, the balance of convenience favours maintaining the status quo until their appeal is decided.
[22] I do not agree. They 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: IRPA, subsection 48(2). 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.
JUDGMENT
THIS COURT ORDERS that this motion for a stay of removal be dismissed.
“Michel M. J. Shore”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1470-07
STYLE OF CAUSE: DORIS PAUL v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 16, 2007
REASONS FOR JUDGMENT: SHORE J.
APPEARANCES:
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Ms. Melinda Anne Gayda
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Ms. Angela Marinos
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SOLICITORS OF RECORD:
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MELINDA ANNE GAYDA Toronto, Ontario
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JOHN H. SIMS, Q.C. Deputy Attorney General of Canada
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