Date: 20061212
Dockets: IMM-6382-06
IMM-6439-06
Citation: 2006
FC 1486
Toronto, Ontario, December 12, 2006
PRESENT: The Honourable Mr. Justice von Finckenstein
Docket: IMM-6382-06
BETWEEN:
BERNADINE
DAVID
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Docket: IMM-6439-06
AND BETWEEN:
BERNADINE DAVID
Applicant
and
MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an
application for a stay of removal slated for December 17, 2006.
[2]
The
Applicant is a citizen of Barbados and St. Lucia. She came to Canada as a visitor on November 19, 2001, and
made a refugee claim on September 14, 2004. The Refugee Protection Division (“RPD”)
denied her refugee claim on March 21, 2005, and no judicial review of that
decision was ever sought.
[3]
The Applicant
filed an humanitarian and compassionate (“H & C”) application on August 2,
2005, which is still outstanding.
[4]
On July
26, 2006, she was arrested and detained. She made a Pre-Removal Risk Assessment
(“PRRA”) application on August 10, 2006. Her application was denied on October
18, 2006, and delivered to her while in detention on November 16, 2006. She was
also told to report for removal on December 17, 2006. A request for deferral of
removal was denied on December 6, 2005.
[5]
The
Applicant has applied for leave to seek judicial review of the two decisions: (1)
the negative PRRA decision of October 18, 2006; and (2) the refusal to defer
removal dated December 6, 2006.
[6]
Under the
triple conjunctive test of Toth v. Canada (Minister of Employment &
Immigration)
(1988), 86 N.R. 302 (F.C.A), the Applicant has to establish:
i)
Serious
issue;
ii)
Irreparable
harm; and
iii)
Balance of
convenience.
[7]
I am not
convinced that the Applicant has made out a case of irreparable harm for the
following reasons.
[8]
To support
her position on irreparable harm the Applicant makes several assertions that
can be summarized in the following four points:
i)
fear of
persecution by her ex-boyfriend and lack of protection from the state authorities
in Barbados;
ii)
fear of
being unable to work in the food industry as she is HIV positive and the
government allegedly test food industry workers to protect the tourist
industry;
iii)
fear of
stigmatization by reason of being HIV positive; and
iv)
need for
medical treatment given her HIV positive status.
[9]
It is well
established that the evidence for irreparable harm must constitute more than a
series of possibilities. It cannot be based on speculation or vague
generalities (see Atwal v. Canada (Minister of Citizenship and Immigration), 2004 FCA 427, 330 N.R.
300 at
para. 14. In addition, it must be more than the usual consequences of
deportation. These consequences have been concisely described by Pelletier
J. in Melo v. Canada
(Minister of Citizenship and Immigration), (2000), 188
F.T.R. 39 at para. 21:
But 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.
[10]
Similarly,
Evans J.A. stated in Selliah v. Canada
(Minister of Citizenship and Immigration), 2004 FCA 261
at para. 13:
The removal of persons
who have remained in Canada without status will always disrupt the lives that they
have succeeded in building here. This is likely to be particularly true of
young children who have no memory of the country that they left. 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.
[11]
The
evidence in this case either consists of points already dealt with in previous
proceedings or is speculative and vague.
[12]
Point i)
was already examined by the PRD and the PRRA officer and was not accepted. The
Applicant is not presenting any new evidence in that respect but merely repeats
the assertions made before those two decision makers. Merely repeating
assertions in previous proceedings is not sufficient to meet the Toth
test (see Nalliah v. Canada (S.G.), 2004 F.C. 1649 at para. 27).
[13]
Point ii) has
not been established. No evidence as to the alleged testing other than the Applicant’s
affidavit was presented. Secondly, even if it is true, it merely means loss of
employment in one sector of the economy, i.e., a possible lack of employment in
the Applicant’s area of choice. It is well established that employment loss is
one of the unfortunate side effects of removal but does not amount to
irreparable harm.
[14]
As to
point iii) it is truly vague and speculative. No evidence other than the
general statements contained in the affidavit has been presented. Without
further evidence the Court is unable deal with this point.
[15]
As to
point iv) the Applicant is presently not receiving any treatment. She is merely
being monitored as her initial treatment was successful. Again her assertions
are mere speculation.
[16]
Accordingly,
as the irreparable harm prong of the Toth test has not been established
this application must fail.
ORDER
THIS COURT ORDERS that this application be denied.
“Konrad W. von Finckenstein”
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