Date: 20060324
Docket: IMM-1503-06
Citation: 2006
FC 378
Ottawa, Ontario, March 24, 2006
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
TYRONE
AUBRIE PERRY
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1]
This is an
emergency motion for a stay brought forward with respect to a removal order
scheduled for March
24, 2006.
BACKGROUND
[2]
On March
13, 2006, an exclusion order was issued for the Applicant’s removal.
[3]
Prior to
his arrest in March 2006, the applicant did not have a valid work permit nor a
visitor document since January
2, 1991.
[4]
On March
15, 2006, he was to report for removal on March 24, 2006.
[5]
On March
17, 2006, the applicant requested that a deferral of execution of his removal
order pending his application for landing from within Canada on humanitarian and compassionate
(H&C) grounds. The H&C application had not been made and was to be
based on the best interests of the Applicant’s children.
[6]
On March 20, 2006, the request for deferral was
refused on the basis of various factors including that the applicant could find
employment in the United States with which to support his children in Canada;
the Applicant’s children could visit him in the United States and he had not
taken any steps to perfect his status in Canada during his decades-long history
with immigration authorities.
[7]
There is
no record of the applicant having made any application for permanent residence,
on humanitarian and compassionate ground or otherwise, in the more than twenty years
he has been living in Canada. The applicant has never applied for refugee
protection while in Canada.
ISSUE
[8]
The
main issue is whether the applicant has satisfied the preconditions for a stay
of removal.
A. The Test
[9]
In
order to demonstrate that he should be entitled to a stay of his removal
order, the applicant is required to show all three elements of the conjunctive
test:
(a) There is a
serious issue to be determined;
(b) There will be
irreparable harm if the stay is not granted; and
(c) The balance
of convenience favors the granting of a stay.
Toth v. Canada (M.E.I.) (1988), 86 N.R. 302
(F.C.A.)
B. Serious Issue to be Tried
[10]
The Applicant
in his motion has not raised a serious issue to be tried. The respondent acknowledges
that case law has held this aspect of the test to be a fairly low threshold,
not requiring the same thorough examination of the applicant’s case which would
be present on a judicial review. However, the applicant must still meet the
threshold test by presenting some evidence of his case on judicial review, so
that the Court can determine whether any serious legal issue exists.
[11]
Case
law on stay motions indicates that the existence of a judicial review
application or other litigation, by itself, is not a serious issue for the
purposes of granting a stay. (Akyol v. Canada (M.C.I.) [2003] F.C.J. No. 1182 (QL) at para. 11)
[12]
The
existence of a court application by itself does not constitute a serious issue
to be tried. As interlocutory relief, every motion for a stay must take place
within the context of an existing judicial application of some kind. If all
that was required to raise a serious issue was to file a court application,
this aspect of the test would be meaningless.
[13]
The
scope of the authority of a removal officer to defer removal is not, in itself,
a serious issue. A removal officer has a very limited discretion to defer
removal given the statutory requirement that removal orders be enforced as soon
as reasonably practicable. The law is clear that removal is the rule while
deferral is the exception. (Immigration and Refugee Protection Act,
S.C. 2002, c. 27, s. 48) (Padda v. Canada (M.C.I.), [2003] F.C.J.
No.1353 at paras. 7-9)
[14]
The
discretion of a removal officer to defer removal under s.48 of the IRPA is
extremely narrow. It is restricted to determining when the removal order will
be executed. In deciding when it is “reasonably practicable” to execute a
removal order, a removal officer may consider compelling or special personal circumstances.
(Simoes v. Canada (M.C.I.), supra at para. 12;Wang v. Canada
(M.C.I.), supra at para. 45; Kaur v. Canada (M.C.I.), supra
at paras 15 and 18; Mollaw v. Solicitor General of Canada, (September
28, 2004) IMM-8072-04)
[15]
The applicant
has resided in Canada since 1992. An
exclusion order was issued on March 13, 2006 and the applicant received his
removal instructions on March 15, 2006. On Friday, March 17,
2006 at 4:57p.m., the applicant’s counsel requested a deferral of the applicant’s
removal pending the determination of the applicant’s intended humanitarian and
compassionate (“H&C”) application for permanent residency. To date, there
is no evidence that the applicant has filed an H&C application despite the
extensive passage of time available for him to do so. Rather, the evidence is
that the applicant intends to file an H&C application.
[16]
The
Court has recognized that the mere existence of a pending H&C application
is not, in and of itself, a bar to removal. The respondent submits that
similar logic should apply to the intention to file an H&C application and
that intention should not operate as a bar to removal, especially when the applicant
has not provided a reasonable explanation for not having pursued an H&C
application prior to the eve of his removal from Canada. (Simoes v. Canada (M.C.I.), [2000] F.C.J. No. 936
at 12; Wang v. Canada (M.C.I.), [2001] 3 F.C. 682 at para. 45; Kaur
v. Canada (M.C.I.), [2001] F.C.J. No. 1082 at paras. 18.)
[17]
In Wang
v. Canada, [2001] 3 F.C. 682 (T.D.) at para.31, the Court recognized
that a deferral should not be issued simply for the sake of delay.
A
useful starting point in an attempt to discern such an organizing principle is
to consider the logical boundaries of the notion of deferral. To defer means
"to put over to another time". But one does not defer merely for the
sake of delay. If the act of deferring is to be legally justifiable, it must be
because, as a result of that deferral, some lawful reason for not executing the
removal order may arise.
[18]
The applicant
has not filed an H&C application, nor has he provided compelling evidence
as to why he has not done so. The applicant never sought refugee protection in
Canada prior to the issuance
of the exclusion order on March 13, 2006. To grant the stay at
this time would amount to a delay without justification because there is no
outstanding process that could lead to the applicant’s landing in Canada. (Wang v. Canada,
supra at para.42)
[19]
The applicant
argues that s.3(3)(f) of the IRPA has incorporated the United Nation’s
Convention on the Rights of the Child, (the Convention) into Canadian law
and that the IRPA must be construed and applied in a manner that is consistent
with the Convention.
[20]
The
Federal Court of Appeal stated that s.3(3)(f) does not incorporate international
human rights instruments to which Canada is signatory into Canadian law, but
rather directs that IRPA must be construed and applied in a
manner that complies with those instruments. (De Guzman v. Canada (M.C.I.), 2005 FCA
436)
[21]
The applicant
further argues that the removal officer had an obligation to assess the best
interests of the applicant’s children prior to making the decision to refuse to
defer removal. In Munar v. Canada (Minister of Citizenship and Immigration), the Federal Court stated
that the removal officer does not have the jurisdiction, the necessary training
or the duty to conduct an H&C assessment. The obligation to conduct an
H&C assessment properly rests with an H&C Officer and the removal
officer is only obligated to consider the short term best interests of
children, such as the termination of a school year if the children are
traveling with the parent who is being removed.
For all these reasons, I am of the view
that the filing of an H & C application cannot automatically bar the
execution of a removal order, even if it results in the separation of a child
from his or her parent(s). Similarly, removals officers cannot be required
to undertake a full substantive review of the humanitarian circumstances that
are to be considered as part of an H & C assessment. Not only would that
result in a "pre H & C" application", to use the words of
Justice Nadon in Simoes, but it would also duplicate to some extent the
real H & C assessment. More importantly, removals officers have no jurisdiction
or delegated authority to determine applications for permanent residence
submitted under section 25 of the IRPA. They are employed by the
Canadian Border Services Agency, an agency under the auspices of the Minister
of Public Safety and Emergency Preparedness, and not by the Department of
Citizenship and Immigration. They are not trained to perform an H & C
assessment. Munar
v. Canada (M.C.I.), 2005 FC 1180 [emphasis added]
[22]
Precisely
the same reasoning
applies here. The removal officer had neither the delegated authority nor the
jurisdiction to determine the best interests of the applicant’s children under
section 25 of the IRPA. In Morello and in Lawes, this Court has
recently affirmed that an H&C application by itself is not a bar to
removal, and that removals officers have neither jurisdiction nor
delegated authority to access H&C applications under s.25 of IRPA. (Morello
v. Canada (M.C.I.), (unreported,
November 1, 2005, IMM-6552-05); Lawes v. Canada (M.C.I), (unreported, February 3, 2006, IMM-555-06)
[23]
The
removal officer was satisfied that the short-term best interests of the applicant’s
children were not going to be adversely affected by his removal from Canada. The children were
living with their mother in Airdrie. The assessment of the children’s
long-term best interests is to be properly assessed within the context of an
H&C application. Again, the applicant has not provided any evidence that
he has made an H&C application.
[24]
The
removal order against the applicant is valid and the respondent is under a
statutory duty to execute it.
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. In considering the duty imposed and duty
to comply with section 48, the availability of an alternate remedy, such as a
right of return, should weigh heavily in the balance against deferral since it
points to a means by which the applicant can be made whole without the
necessity of non-compliance with a statutory obligation. For that reason, I
would be inclined to the view that, absent special considerations, an H & C
application which is not based upon a threat to personal safety would not
justify deferral because there is a remedy other than failing to comply with a
positive statutory obligation. Wang v. Canada,
supra at para.45
[25]
The
removal officer did not commit an error of law in refusing to defer the applicant’s
request for a deferral of removal on the grounds that he intended to bring an
H&C application.
[26]
The applicant
also argues that his s.10(b) rights under the Charter of Rights and Freedoms
(“the Charter”) were violated because he was denied an opportunity to exercise
his right to counsel. The Court has held that “subsection 10(b) of the Charter
does not extend beyond arrest and detention to include a right to counsel at
routine immigration examinations that are not hearings.” (Korniakov v.
Canada (M.C.I.), [2002] F.C.J. No. 611 at para. 27)
C. Irreparable
Harm
[27]
The applicant
has not demonstrated that he will suffer irreparable harm if he returns to the United States. None of the applicants’
submissions amount to irreparable harm, only at most personal disruption which
is the normal result of deportation. This stay application should also be
dismissed for that reason. (Aktora v. Canada (M.E.I.), [1993] FCT
No. 826 (F.C.T.D.))
[28]
In Akyol, supra, this Court reaffirmed that irreparable
harm must be personal and not speculative, and must move beyond the normal
consequences of deportation. The applicant’s arguments regarding the potential
consequences of removal are speculative. He has not provided any evidence to
demonstrate that he faces any risk of persecution in the United States or that
anyone in the United
States is
seeking to arrest, detain, interrogate or torture him if he returns. The applicant
has failed to provide evidence from objective sources that he faces a
personalized danger to his life should he return to the United States. Further, the
existence of outstanding litigation does not constitute irreparable harm.
Accordingly, there is no breach of the principles of natural justice if the
removal order is executed before the judicial review is heard. (Akyol v. Canada (M.C.I.), supra at paras. 6, 7, 9, 11)
[29]
Irreparable
harm must also be much more substantial and more serious than personal
inconvenience or hardship. Rather, it must be based on a threat to the life or
security of the person, or an obvious threat of ill treatment in the country of
origin. Irreparable harm is harm which is irrevocable or permanent. Again,
there is simply no such evidence here. (Louis v. Canada (M.C.I.), [1999] F.C.J. No.
1101; Soriano v. Canada (M.C.I.), [2000] F.C.J. No. 414)
[30]
Even
where separation caused by
removal may produce substantial economic or psychological hardship to a family
unit, the test remains whether the applicant himself will suffer irreparable
harm. (Mariona
v. Canada (M.C.I.),
[2000] F.C.J. No. 1521 (T.D.); Carter v. Canada (M.C.I.), 1999] F.C.J. No. 1011
(T.D.); Balvinder v. Canada (M.C.I.) (unreported, December 15, 2005, IMM-7360-05))
[31]
This
Court has held that the break-up or relocation of an applicant’s
family is not a sufficient basis upon which to find that the applicant will
suffer irreparable harm if removed. (Mallia v. Canada (M.C.I), [2000] F.C.J. No. 369
(F.C.T.D.); Mikhailov v. Canada (M.C.I.), [2000] F.C.J. No. 642
(F.C.T.D.); Aquila v. Canada (M.C.I.), [2000] F.C.J. No. 36
(F.C.T.D.))
[32]
In Tesoro,
the Federal Court of Appeal recently considered irreparable harm in some detail
and held that family separation is not necessarily a basis for finding
irreparable harm. To the contrary, family separation is merely one of the consequences
of deportation. (Tesoro v. Canada (M.C.I), 2005 FCA 148 at paras. 34-42)
[33]
The respondent
respectfully submits that there are no unusual circumstances in this case.
Although deportation may be inconvenient and distasteful to the applicant, he
has not shown irreparable harm in the circumstances of this case.
D. Balance of Convenience
[34]
In
assessing the balance of convenience, the Court must consider the public
interest in the enforcement of laws that have been enacted by
democratically-elected legislatures and passed for the common good. If a
statute charges a public authority with undertaking a particular action, the
Court should in most cases assume that irreparable harm to the public interest
would result from the restraint of that action. (RJR – MacDonald Inc. v. Canada (Attorney General) [1994] 1 S.C.R. 311; Manitoba (Attorney General) v.
Metropolitan Stores Ltd. [1987] 1 S.C.R. 110)
[35]
The Immigration
and Refugee Protection Act requires the Solicitor General of Canada to
enforce a removal order as soon as is reasonably practicable. The balance of
convenience in this case favours the Minister. The applicant is removal ready,
and the Minister is under a statutory obligation to ensure that the removal is
carried out as soon as possible. (Immigration and Refugee Protection Act,
S.C. 2001, c.27, s.48)
[36]
If
the person seeking a stay order does not establish that he or she will suffer
irreparable harm if his or her removal is not stayed, the balance of
convenience will favour not staying the removal because staying the removal
must be assumed to cause irreparable harm to the public interest. (Hill v.
Minister of Fisheries and Oceans (March 17, 2000) T-284-00 (F.C.T.D.); Dugonitsch
v. Canada (M.E.I.) [1992] F.C.J. No. 320
(F.C.T.D.))
[37]
In Dugonitsch
v. Canada (M.E.I.), Justice MacKay stated:
Absent
evidence of irreparable harm, it is strictly speaking unnecessary to consider
the question of the balance of convenience. Nevertheless, it is
useful to recall that in discussing the test for a stay or an interlocutory
injunction in the Metropolitan Stores case Mr. Justice Beetz stressed the
importance of giving appropriate weight to the public interest in a case where
a stay is sought against a body acting under public statutes and regulations
which have not yet been determined to be invalid or inapplicable to the case at
hand. That public interest supports the maintenance of statutory programs and
the efforts of those responsible for carrying them out. Only in
exceptional cases will the individual's interest, which on the evidence is
likely to suffer irreparable harm, outweigh the public interest. This
is not such an exceptional case. (Dugonitsch v. Canada (M.E.I.), supra)
[38]
The
simple fact that the person seeking a stay order has no criminal record, is not
a security concern and is financially established and socially integrated in
Canada does not mean that the balance of convenience favours granting a stay
order. In dismissing a motion for a stay, the Federal Court of Appeal 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 as soon as a reasonably practicable…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.
Selliah
v. Minister of Citizenship and Immigration 2004 FCA 261.
[39]
Absent
special circumstances, the public interest in this case should outweigh the applicants’
personal interest. As noted in the case of Membreno-Garcia v. Canada (M.E.I):
There
is a public interest in having a system which operates in an efficient,
expeditious and fair manner and which, to the greatest extent possible, does
not lend itself to abusive practices.
Membreno-Garcia
v. Canada (M.E.I) [1992] F.C.J. No 535 (F.C.T.D.)
[40]
The respondent
submits that the public interest is an important statutorily mandated concern,
and there are no special circumstances present which should override that
concern. As such, the balance of convenience in this case lies with the
Minister. The applicant is removal ready, and the Minister is under a
statutory obligation to ensure that the removal is carried out as soon as
possible. (Immigration and Refugee Protection Act, S.C. 2001, c.27, s.48)
CONCLUSION
[41]
The
stay application is dismissed.
ORDER
THIS COURT ORDERS that the application for a
stay of the removal order be dismissed.
“Michel M.J. Shore”
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