Ottawa, Ontario, June 13, 2007
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
and
AND EMERGENCY PREPAREDNESS
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] A removals officer cannot defer removal for just any proceeding in the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), for which he/she is not the mandated decision-maker. The removals officer does not have the jurisdiction to make a renewed refugee assessment, nor a Pre-Removal Risk Assessment (PRRA), nor a decision on humanitarian and compassionate (H&C) grounds, nor, is he mandated to determine judicial reviews or appeals of any of the preceding or other procedures. A removals officer is solely mandated with the discretion to defer removal for reasons associated with the challenges of arranging international travel. The Court in Wang v. Canada (Minister of Citizenship and Immigration), 2001 FCT 148, [2001] F.C.J. No. 295 (QL), explained how very limited the discretion is:
[45] The order whose deferral is in issue is a mandatory order which the Minister is bound by law to execute. The exercise of deferral requires justification for failing to obey a positive obligation imposed by statute. That justification must be found in the statute or in some other legal obligation imposed on the Minister which is of sufficient importance to relieve the Minister from compliance with section 48 of the Act…
…
[48] …At its widest, the discretion to defer should logically be exercised only in circumstances where the process to which deferral is accorded could result in the removal order becoming unenforceable or ineffective. Deferral for the mere sake of delay is not in accordance with the imperatives of the Act. One instance of a policy which respects the discretion to defer while limiting its application to cases which are consistent with the policy of the Act, is that deferral should be reserved for those applications or processes where the failure to defer will expose the applicant to the risk of death, extreme sanction or inhumane treatment in circumstances and where deferral might result in the order becoming inoperative.
[2] 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.)
[3] In the Federal Court of Appeal decision in Selliah v. Canada (Minister of Citizenship and Immigration), 2004 FCA 261, [2004] F.C.J. No. 1200 (F.C.A.) (QL), Justice John Maxwell Evans found that since the Appellants had received a number of administrative decisions, which had been upheld by the Federal Court, in his view, the balance of convenience did not favour delaying further discharge of the Minister’s duty, or the Appellant’s duty as persons subject to an enforceable removal order, to leave Canada immediately. Justice Evans stated:
[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.
[4] The Applicant is a non-citizen who has had the benefit of two administrative decisions assessing risk. He had a negative refugee claim and a negative PRRA. His application to this Court for judicial review of his negative PRRA was dismissed. The Applicant has not demonstrated that the balance of convenience favours the non-application of the law or outweighs the public interest. (Dasilao v. Canada (Minister of Citizenship and Immigration), 2004 FC 1168, [2004] F.C.J. No. 1410 (QL).)
JUDICIAL PROCEDURE
[5] The Applicant seeks a stay of execution of the removal order made against him, scheduled to be executed on Wednesday, June 13, 2007 at 2:20 p.m., until such time as his application for leave and for judicial review can be determined, and if successful, until the subsequent reconsideration of the deferral request has been completed.
BACKGROUND
[6] The Applicant, now twenty-four years old, arrived in Canada on April 15, 1990 at the age of seven, as a visitor with valid visa status until October 14, 1990.
[7] On May 21, 2002, the Applicant made a claim for refugee protection. A section 27 report was completed and a conditional departure order was issued against the Applicant.
[8] On October 21, 2002, the Applicant’s refugee claim was deemed abandoned. The Applicant was directed to report for a removal interview on January 8, 2003 and failed to attend.
[9] On February 9, 2003, the Applicant was arrested on an immigration warrant. The Applicant presented evidence that his refugee claim was deemed abandoned in error and that his hearing was scheduled for February 18, 2003.
[10] On September 3, 2003, the Applicant was charged with assault.
[11] On January 15, 2004, the Applicant received a conditional discharge for an assault charge and was placed on probation for one year.
[12] On June 22, 2004, the Applicant’s refugee claim was denied.
[13] On July 8, 2004, the Applicant filed an application for leave and for judicial review challenging the negative refugee decision. On October 28, 2004, leave was denied.
[14] On March 27, 2005, the Applicant was arrested by immigration authorities and released on a cash bond of $3,000 and conditions. At the time, it was noted that the Applicant stated he was married, and he gave evidence that he lived with his parents and his alleged wife lived at another address with her parents. It was further noted that the Applicant had been charged with assault against his alleged spouse and he was acquitted of that particular charge.
[15] On April 14, 2005, the Applicant made an application for PRRA.
[16] On June 18, 2005, the Applicant was arrested for failing to comply with the conditions of his Court order as well as conditions of immigration officials. The Applicant’s detention was ordered to continue.
[17] On July 21, 2005, the Applicant’s PRRA was determined to be negative.
[18] On August 5, 2005, the Applicant was released on strict terms and conditions including reporting to the Greater Toronto Enforcement Centre every month and to comply with any removal arrangements.
[19] In April 2005, the Applicant submitted an application for landing on H&C grounds with spouse as sponsor; however, the application was returned for insufficient fees.
[20] The Applicant was scheduled for removal from Canada on November 28, 2005. The Applicant filed an application for leave and for judicial review and a motion for a stay of removal. A stay was granted and removal was cancelled. Leave was denied on November 15, 2006.
[21] In October, 2005, the Applicant re-submitted his H&C with spousal sponsor with the proper fees.
ISSUE
[22] 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.
ANALYSIS
Preliminary matter: Amendment to Style of Cause
[23] This motion and underlying application concern a decision of the Canada Border Services Agency, which falls under the portfolio of the Minister of Public Safety and Emergency Preparedness and not the Minister of Citizenship and Immigration. The Respondent requests that the Court order that the style of cause be amended to strike out the “Minister of Citizenship and Immigration” as a responding party and to substitute instead the Minister of Public Safety and Emergency Preparedness. (Order Setting Out the Respective Responsibilities of the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness Under the Act, SI/2005-120, P.C. 2005-2042.)
Test for Stay
[24] The test for granting a stay is well established. The Applicant 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) (F.C.A.), [1988] F.C.J. No. 587 (QL); RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 (QL).)
[25] The requirements of the tripartite test are conjunctive. That is, the Applicant 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, [1994] F.C.J. No. 1690 (QL).)
[26] Since the granting of the Applicant’s motion would effectively give him the relief he seeks in his underlying application for leave and judicial review, this Court must review the merits of the application. This has been confirmed in Wang, above, at paragraph 11, where Justice Denis Pelletier held that the threshold for the serious issue branch of the tripartite test in motions such as this, is not frivolous and vexatious, but rather, the “likelihood of success.” (Reference is also made to RJR-MacDonald, above.)
[27] The issuance of a stay is an extraordinary remedy wherein the Applicants must demonstrate “special and compelling circumstances” that would warrant “exceptional judicial intervention. (Tavaga v. Canada (Minister of Employment and Immigration), (1991) 15 Imm. L.R. (2d) 82 (F.C.T.D.), [1991] F.C.J. No. 614 (QL); Machado v. Canada (Minister of Employment and Immigration) (1989), 9 Imm. L.R. (2d) 90, [1989] F.C.J. No. 724 (QL); Ikeji v. Canada, 2001 FCT 573, [2001] F.C.J. No. 885 (QL), at para. 8.)
SERIOUS ISSUE
No reviewable error in Officer’s decision
[28] The Applicant has not pointed to any specific issue with the Officer’s decision. In fact, the Applicant did not know the reasons the Officer refused deferral. Rather, the Applicant’s argument is to the effect that there is a serious issue simply because his request for a deferral was refused. (Applicant’s Motion Record; Applicant’s Memorandum of Fact and Law, p. 206, para. 11.)
[29] Since there is no statutory or other duty on the Officer to defer the Applicant’s removal, and since the Officer’s discretion is very limited, the mere fact that the Applicant’s deferral request was refused does not constitute a serious issue.
[30] Section 48 of the IRPA, requires that a removal order “be enforced as soon as reasonably practicable”.
[31] The IRPA makes no provision for the reconsideration of decisions to execute a valid removal order. Where no statutory requirements for reassessment exist, a failure by a removals officer to reassess cannot constitute grounds for judicial review. Removals officers merely particularize when and where the deportation order is to be executed and have no discretion with respect to removal. As the Minister’s official, the removals officer is obliged by law to take the necessary steps to ensure that the removal would take place as soon as reasonably practicable pursuant to s. 48 of the IRPA. (Brar v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1527 (F.C.T.D.) (QL); Williams v. Canada (Minister of Citizenship and Immigration), 2002 FCT 853, [2002] F.C.J. No. 1133 (QL).)
[32] Removals officers have the authority to defer execution of a removal order only in very limited circumstances such as those arising just prior to the removal date. In light of the fact that the IRPA provides for a Pre-Removal Risk Assessment, the factors that can be considered by removals officers are tied to the Applicant’s physical ability to comply with the removal order – e.g. fitness to travel. In this case, it was well within the Officer’s discretion to find that the Applicant’s circumstances did not warrant deferral of removal. (Pavalaki v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 338 (QL); Wiltshire v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 571, at para. 6; Simoes v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 936 (F.C.T.D.) (QL); Wang, above, at paras. 31, 32, 45; Prasad v. Canada (Minister of Citizenship and Immigration), 2003 FCT 614, [2003] F.C.J. No. 805 (QL), at para. 32; Padda v. Canada (Minister of Citizenship and Immigration), 2003 FC 1081, [2003] F.C.J. No. 1353 (QL), at paras. 8-9.)
[33] In considering whether the Applicants have raised a serious issue, it is important to keep in mind that jurisprudence of this Court indicates that a removal officer’s discretion to defer a person’s removal is very limited. (Benitez v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1307, [2001] F.C.J. No. 1802, at para. 16; Wang, above, at paras. 43-45; Mariona v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1521 (QL); Harry v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1727 (QL); Horvath v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1760 (QL); Davis v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1628 (QL).)
[34] A removals officer cannot defer removal for just any proceeding in the IRPA, for which he/she is not the mandated decision-maker. The removals officer does not have the jurisdiction to make a renewed refugee assessment, nor a PRRA, nor a decision on H&C grounds, nor, is he mandated to determine judicial reviews or appeals of any of the preceding or other procedures. A removals officer is solely mandated with the discretion to defer removal for reasons associated with the challenges of arranging international travel. The Court in Wang, above, explained how very limited the discretion is:
[45] The order whose deferral is in issue is a mandatory order which the Minister is bound by law to execute. The exercise of deferral requires justification for failing to obey a positive obligation imposed by statute. That justification must be found in the statute or in some other legal obligation imposed on the Minister which is of sufficient importance to relieve the Minister from compliance with section 48 of the Act…
…
[48] …At its widest, the discretion to defer should logically be exercised only in circumstances where the process to which deferral is accorded could result in the removal order becoming unenforceable or ineffective. Deferral for the mere sake of delay is not in accordance with the imperatives of the Act. One instance of a policy which respects the discretion to defer while limiting its application to cases which are consistent with the policy of the Act, is that deferral should be reserved for those applications or processes where the failure to defer will expose the applicant to the risk of death, extreme sanction or inhumane treatment in circumstances and where deferral might result in the order becoming inoperative.
[35] The Wang decision has been referred to and followed in a number of decisions, some of which are Peterson v. Canada (Minister of Public Safety and Emergency Preparedness), (April 26, 2006) Doc. No. IMM-2039-06; Kaur v. Canada (Minister of Citizenship and Immigration), 2001 FCT 741, [2001] F.C.J. No. 1082 (QL), at para. 13; Sklarzyk v. Canada (Minister of Citizenship and Immigration), 2001 FCT 336, [2001] F.C.J. No. 579 (QL), at para. 11; Sklarzyk v. Canada (Minister of Citizenship and Immigration), [2001] O.J. No. 1842 (Ont. Superior Court of Justice); Chandrasekaran v. Canada (Minister of Citizenship and Immigration), 2001 FCT 757, [2001] F.C.J. No. 1101 (QL), at para. 6; Benitez, above.
[36] In the absence of a legal obligation to defer removal, the Applicant’s application does not raise a serious issue. (Wang, above; Simoes, above.)
Spousal sponsorship
[37] The Officer noted that the spousal sponsorship was only referred in April 2007 because insufficient payment fees had been submitted with the original application. (Heinze Affidavit 1, Exhibit “A”, Notes to File.)
[38] There is significant case-law from this Court and biding case-law from the Federal Court of Appeal that states than an outstanding application is not, by itself, a reason for staying removal. (Kim v. Canada (Minister of Citizenship and Immigration), 2003 FCT 321, [2003] F.C.J. No. 453 (QL); Akyol v. Canada (Minister of Citizenship and Immigration), 2003 FC 931, [2003] F.C.J. No. 1182 (QL), at para. 11; Ryan v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1413, [2001] F.C.J. No. 1939 (QL), at para. 8; Selliah, above; 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, [2005] F.C.J. No. 698 (QL); Owusu v. Canada (Minister of Citizenship and Immigration), (28 August 1995) Doc. No. IMM-2247-97, at paras. 5-6.)
[39] The Officer was not obliged to defer removal until the Applicant’s applications had been decided. The IRPA specifically outlines the situations in which removal is to be stayed, and Parliament has not included pending H&C applications in this category. (Simoes, above; Smith v. Canada (Minister of Citizenship and Immigration), 2001 FCT 388, [2001] F.C.J. No. 632 (QL); Buchting v. Canada (Minister of Citizenship and Immigration), 2003 FC 953, [2003] F.C.J. No. 1216 (QL); Holubova v. Canada (Minister of Citizenship and Immigration), 2004 FC 527, [2004] F.C.J. No. 655 (QL); Wang, above.)
[40] It is well established that a removal officer is not meant to act as a last-minute humanitarian and compassionate tribunal. As the Court has held in Davis, above:
[4] …I adopt the reasons of Mr. Justice Nadon in Simoes v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 936 which I will not repeat here. I would add to them to this extent. The Immigration Act and the jurisprudence of this Court have established a series of checkpoints at which various interests are assessed and weighed. At the conclusion of that process is the removal process itself. In my view, it was not the intention of Parliament in providing that removal be effected as soon as reasonable practicable to put upon the Removals officer the obligation to consider all of the factors which are to be raised and considered in the steps preceding removal. (Emphasis added.)
[41] The Court has also stated in Cupkova v. Canada (Minister of Citizenship and Immigration), (August 28, 2003) Doc. No. IMM-6555-03, by Justice Judith A. Snider:
Further, consideration of an application on humanitarian and compassionate grounds is not the statutory mandate of the removals officer.
IRREPARABLE HARM
No clear or non-speculative evidence
[42] The Applicant has provided no clear or non-speculative evidence that he faces irreparable harm if removed to Venezuela.
[43] The Applicant had a negative refugee decision in 2004 and a negative PRRA in 2005. (Heinze Affidavit, Exhibit “A”, Notes to File.)
[44] 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 her life or safety. (Duve v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 387 (T.D.) (QL), at para. 22; Mikhailov v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 642 (QL), at paras. 12-13; Frankowski v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 935, at para. 7; Csanyi v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 758, at para. 4.)
[45] 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. (John v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 915 (QL); Wade v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 579 (QL), at paras. 3-4.)
[46] In Selliah, above, The Federal Court of Appeal has affirmed the following principle:
[13] The removal of persons who have remained in Canada without status will always disrupt the lives that they have succeeded in building here… Nonetheless, the kinds of hardship typically occasioned by removal cannot, in my view, constitute irreparable harm for the purpose of the Toth rule, otherwise stays would have to be granted in most cases, provided only that there is a serious issue to be tried: Melo v. Canada (Minister of Citizenship and Immigration) (2000), 188 F.T.R. 39.
(Reference is also made to Atwal v. Canada (Minister of Citizenship and Immigration), 2004 FCA 427, [2004] F.C.J. No. 2118 (QL), at paras. 16-17; Sklarzyk, above; Ram v. Canada (Minister of Citizenship and Immigration), (June 13, 1996), Doc. No. IMM-1939-06; Simoes, above; Frank v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1574 (QL); Kerrutt v. Canada (Minister of Employment and Immigration), 53 F.T.R. 93, [1992] F.C.J. No. 237 (QL); Mallia v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 369 (QL).)
[47] As stated by Justice Pelletier in Melo v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 403 (QL):
[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
[48] 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.
[49] 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 the IRPA.
[50] 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.)
[51] 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, above; Blum v. Canada (Minister of Citizenship and Immigration), (1994) 90 F.T.R. 54, [1994] F.C.J. No. 1990 (QL), per Justice Rouleau.)
[52] In the Federal Court of Appeal decision in Selliah, above, Justice Evans found that since the Appellants had received a number of administrative decisions, which had been upheld by the Federal Court, in his view, the balance of convenience did not favour delaying further discharge of the Minister’s duty, or the Appellant’s duty as persons subject to an enforceable removal order, to leave Canada immediately. Justice Evans stated:
[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.
[53] The Applicant is a non-citizen who has had the benefit of two administrative decisions assessing risk. He had a negative refugee claim and a negative PRRA. His application to this Court for judicial review of his negative PRRA was dismissed. The Applicant has not demonstrated that the balance of convenience favours the non-application of the law or outweighs the public interest. (Dasilao, above.)
[54] On March 27, 2005, the applicant was arrested by immigration authorities and released on a cash bond of $3,000 and conditions. On June 18, 2005, the Applicant was arrested for failing to comply with the conditions of the Court order as well as conditions of immigration officials. The Applicant’s detention was ordered to continue. On August 5, 2005, the Applicant was released on strict terms and conditions including reporting to the Greater Toronto Enforcement Centre every month and to comply with any removal arrangements. On February 21, 2007, the Applicant was arrested and no offer for release was made given the Applicant’s history of failing to comply with the conditions imposed on him. The Applicant remains in detention.
[55] The Applicant has shown a repeated disregard for Canada’s laws. He has repeatedly flouted immigration and court conditions. He has repeatedly failed to report as directed by Citizenship and Immigration Canada. In such circumstances, the balance of convenience is with the Respondent.
CONCLUSION
[56] On the basis of the above, this Motion for a stay of removal is dismissed.
ORDER
THIS COURT ORDERS that the motion for a stay of removal be dismissed.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2323-07
STYLE OF CAUSE: RASANATH ESCALONA PEREZ
v. THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING
BY TELECONFERENCE: June 12, 2007
APPEARANCES:
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Mr. Michael Romoff
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Mr. Asha Gafar
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SOLICITORS OF RECORD:
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MAKEPEACE ROMOFF Barristers and Solicitors Toronto, Ontario
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JOHN H. SIMS, Q.C. Deputy Attorney General of Canada
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