PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of decisions by Ms. Simone T. Smith, Enforcement Officer, Canada Border Services Agency, (the Enforcement Officer), dated July 6 and 12, 2006, in which the Enforcement Officer refused the Applicant’s requests for a deferral of removal.
ISSUE
[2] Were the decisions of the Enforcement Officer patently unreasonable?
[3] For the reasons that follow, I find that the decisions are not patently unreasonable. Consequently, the present application for judicial review shall be dismissed.
BACKGROUND
[4] The applicant is a citizen of Columbia, born on February 27, 1960, in the city of Trojillo-Valle. He first came to Canada on July 15, 1991 and claimed refugee status. However, in 1992, he was found to be excluded from the definition of a Convention refugee pursuant to Article 1F(a), in light of his activities as a former member of a guerrilla movement known as M-19. He was subsequently removed from Canada in 1995.
[5] The applicant returned to Canada on August 4, 2000 and made a second refugee claim that same day. He remained faithful to his accounts of his participation in M-19 and again he was deemed excluded pursuant to Article 1F(a). The applicant exhausted a series of immigration procedures available to him, in order to remain in Canada. These include the following:
§ September 2002: Applicant made a Pre-Removal Risk Assessment (PRRA);
§ April 10, 2003: First negative, PRRA decision. The applicant’s deportation was stayed pending the outcome of his application for leave judicial review;
§ September 18, 2003: Judicial review of the first negative PRRA decision was allowed and the PRRA was sent back for re-determination;
§ January 11, 2005: Second negative PRRA, from which a leave application for judicial review was filed on February 3, 2005;
§ May 27, 2005: Application for judicial review of the second negative PRRA decision was dismissed;
§ January 15, 2006: Application for permanent residence under Humanitarian and Compassionate (H&C) grounds denied;
§ April 2006: New H&C application;
§ May 30, 2006: Application for judicial review of the negative H&C application, dated January 15, 2006, was dismissed;
§ July 4, 2006: Pre-Removal Interview with Direction to Report for removal on July 18, 2006. Applicant indicated he would like to purchase his own ticket and the Enforcement Officer gave him a call in notice for July 12, 2006 to provide a one-way ticket to Columbia dated no later than July 31, 2006. The applicant did not provide a ticket. He was given a PRRA application to complete upon his request;
§ July 5, 2006: Applicant made a request for deferral, which was refused by the Enforcement Officer, on July 6, 2006;
§ July 11, 2006: Applicant made a second request for deferral, which was refused on July 12, 2006.
[6] It is these two refusals to grant a deferral of the applicant’s removal, which form the basis of the present application for judicial review.
DECISIONS UNDER REVIEW
[7] The first deferral request dated July 5, 2006, was dismissed because the applicant did not provide evidence to show that he was subject to any risk directly related to him. The Enforcement Officer also refused this request notwithstanding the applicant’s outstanding application for permanent residence based on H&C grounds, which was filed in April 2006 and was therefore not imminent. Finally, the Enforcement Officer had an obligation under section 48 of the Act to enforce removals as soon as reasonably practicable.
[8] The second deferral request, dated July 11, 2006, was similarly dismissed since the evidence provided in the H&C application regarding the applicant’s cousin did not support the conclusion that the applicant is subject to any direct risk. This information was dated August 2005 and anterior to the H&C application. In addition, the deferral was not granted since there was no evidence to indicate clear dependency between the applicant and his sons. Furthermore, the Enforcement Officer indicated that a deferral is meant to be a temporary measure prior to removal and does not accord the possibility of permanent residence status. Finally, there is a statutory obligation to otherwise expedite removal orders.
RELEVANT LEGISLATION
[9] The statutory basis of the Enforcement Officer’s decisions is to be found in section 48 of the Act, which provides as follows:
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Enforceable removal order 48. (1) A removal order is enforceable if it has come into force and is not stayed.
Effect (2) If a removal order is enforceable, the foreign national against whom it was made must leave Canada immediately and it must be enforced as soon as is reasonably practicable. |
Mesure de renvoi 48. (1) La mesure de renvoi est exécutoire depuis sa prise d’effet dès lors qu’elle ne fait pas l’objet d’un sursis.
Conséquence (2) L’étranger visé par la mesure de renvoi exécutoire doit immédiatement quitter le territoire du Canada, la mesure devant être appliquée dès que les circonstances le permettent.
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ANALYSIS
Standard of Review
[10] This Court has established jurisprudence, which stands for the proposition that discretionary decisions, of Enforcement Officers, such as those based on the scheme set out in the Act for the enforcement of removal orders, are reviewable on a standard of patent unreasonableness (see Hailu v. Canada (Solicitor General), [2005] F.C.J. No. 268 (F.C.) (QL), at paragraph 12 and J.B. v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 2094 (F.C.) (QL) at paragraph 25). In other words, this Court will only intervene if the decisions of the Enforcement Officer were patently unreasonable in light of all the evidence before her.
Issue Estoppel
[11] The applicant argues that Justice Max M. Teitelbaum heard arguments on the stay motion on July 17, 2006 and granted the stay application because he was satisfied that the applicant had met the tri-partite test for stay applications. Moreover, the applicant submits that given that the ground to establish a serious issue is identical both when seeking a stay and a leave application for judicial review of the decision, as Justice Teitelbaum had thus determined, that issue is now subject to the principle of issue estoppel on the ground that the parties are the same, the issue has been decisively determined and the decision is final (Raman v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1125 (F.C.T.D.) (QL)).
[12] The applicant’s submissions in this regard are flawed. It suffices to refer to Justice Teitelbaum’s order, which provides as follows:
The Court orders that the application for stay is allowed to such time that the application for leave is allowed. In the event that it is denied, the stay will become void.
[13] Moreover, as the respondent correctly points out, the granting of a stay of removal does not automatically imply that the granting of an application for leave for judicial review is a foregone conclusion. On the contrary, this Court has repeatedly gone on to dismiss leave applications in immigration matters even if a stay of removal was granted.
[14] It is enough to cite the three examples provided by the respondent: Guerra-Parrales v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1345, [2001] F.C.J. No. 1827 (QL) [reasons for stay order] and Guerra-Parrales v. Canada (Minister of Citizenship and Immigration), (13 March 2002), Ottawa, IMM-5489-01 (F.C.) [order dismissing leave]; Martinez Correal et al v. Canada (Minister of Citizenship and Immigration), (July 29, 2004), Ottawa, IMM-6609-04 (F.C.) [order granting stay] and Martinez Correal et al v. Canada (Minister of Citizenship and Immigration), (October 29, 2004), Ottawa, IMM-6609-04 (F.C.) [order dismissing leave]; and Shanaj and Sageri v. Canada (Solicitor General), (July 22, 2004), Ottawa, IMM-6402-04 (F.C.) [order granting stay] and Shanaj and Sageri v. Canada (Solicitor General), (October 18, 2004), Ottawa, IMM-6402-04 (F.C.) [order dismissing leave].
[15] The converse is also true, in that the subsequent dismissal of the leave applications consisted of decisions taken independently or without commentary on the correctness of the prior issuance of the stay removal order, which are not subject to judicial review. That is why it bears reminding that Justice Teitelbaum saw fit to add the following proviso to his order, “In the event that the application for leave is denied, the stay will become void.”
[16] The serious issue threshold test for the granting of a stay is thus lower and entirely different from the applicable standard of review for the decision to grant leave for judicial review. In this fact specific instance, the test for granting leave is based on the patently unreasonable standard of review, and I am not at all satisfied that the applicant has established that the Enforcement Officer’s decisions, in each instance were patently unreasonable.
[17] The applicant cites also Wang v. Canada (Minister of Citizenship and Immigration), 2001 FCT 148, [2001] F.C.J. No 295 (QL), paras. 45, 48 and 50 for the proposition that the removal officer’s decisions are patently unreasonable because there is compelling evidence that the applicant is at risk should he be returned to his country.
[18] After a careful reading of the applicant’s record and the certified documents, I am satisfied that it was not patently unreasonable for the Enforcement Officer to conclude that there was insufficient evidence to establish that the applicant was directly or by inference at risk as a result of his cousins’ situation. In my view, it was not patently unreasonable for the Enforcement Officer to find that there was not more than a mere likelihood that the same fate would be reserved for the applicant. Consequently, I find that neither the July 6 nor the July 11, 2006 refusal was patently unreasonable.
[19] The parties did not submit questions for certification and none arise here.
JUDGMENT
THIS COURT ORDERS that:
- The application for judicial review is dismissed. No question is certified.
« Michel Beaudry »
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3889-06
STYLE OF CAUSE: GERMAN A. LONDONO ECHEVERRY and
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 3, 2007
REASONS FOR JUDGMENT
AND JUDGMENT: Beaudry J.
DATED: May 8, 2007
APPEARANCES:
Osborne Barnwell FOR APPLICANT
Leanne Briscoe FOR RESPONDENT
SOLICITORS OF RECORD:
Osborne Barnwell FOR APPLICANT
North York, Ontario
John Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario