Date: 20060324
Docket: IMM-1509-06
Citation: 2006 FC 376
Ottawa, Ontario, March 24, 2006
PRESENT: The Honourable Mr. JusticeShore
BETWEEN:
MARYREGINAJESUDHAS MANOHARARAJ
MARY JEYANTHINI JESUDHAS MANOHARARAJ
Applicants
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] The Applicants have disregarded an order of this Court dismissing a previous stay motion. They have made several applications to regularize their status, without success. There is no reason to delay the Applicants' removal further.
BACKGROUND
[2] The Applicants arrived in Canada in 1997 and made a refugee claim. The claim was denied in September, 1998. Leave to review the decision was dismissed by this Court in January 1999.
[3] The Applicants have made a previous Humanitarian and Compassionate (H & C) application which was refused. The Applicants applied for a Pre-Removal Risk Assessment (PRRA), which was refused. This Court dismissed leave applications with respect to those decisions.
[4] The Applicants were scheduled for removal in April, 2004. They brought a motion to stay their removal. The motion was dismissed.
[5] The Court, in dismissing the stay, did not find any serious issue arising out of a PRRA officer's risk assessment. (Jesudhasmanohararaj v. Canada(Solicitor General), 2004 FC 596, [2004] F.C.J. No. 727(QL)
[6] The Applicants did not appear for removal, and a warrant was issued for their arrest.
[7] The Applicants were arrested in March, 2006, and their removal was scheduled.
[8] The Applicants allege that "their home" in Chempianpattu, Sri Lanka has been destroyed by a tsunami which struck on December 26, 2004.
[9] In the Personal information Forms filed for the refugee hearing, the adult Applicant alleged that her husband's whereabouts were "unknown".
[10] Before the Refugee Division, the Applicants admitted that this was a misrepresentation, designed to make the Applicants' case more sympathetic.
[11] The Applicants' evidence before the Refugee Division was that the adult Applicant's husband lived in Mannar, and that he had been working for a Sri Lankan government agency since 1985.
ISSUES
[12] The Applicants have failed to meet the tri-partite test for granting a stay of their removal (1) given the lack of a serious issue, (2) the absence of demonstrable proof of irreparable harm, and (3) the balance of convenience favouring the Minister.
* * *
Preliminary considerations prior to the tri-partite test
[13] It is important to note that the Applicants chose to disobey a valid deportation order, and a warrant was issued for their arrest. The Applicants were represented by counsel at the time. The Applicants did not approach this Court for relief until after their arrest.
[14] This Court has held that the equitable remedy of a stay can be denied to those who do not come to the Court with clean hands, including those who deliberately choose to disobey deportation orders. (Araujo v. Canada(Minister of Citizenship and Immigration), (27 August 1997), IMM-3660-97 (F.C.T.D.) Ilyas v. Canada (Minister of Citizenship and Immigration) (1 December 2000), IMM-6126-00 (F.C.T.D.))
[15] In the case at bar, the Applicants have ignored a validly issued removal order. As such, they have purposely violated Canada's immigration laws and have undermined the integrity of the system. The Respondent submits that this reason alone justifies the dismissal of his application. ([1980] 2 S.C.R. 1011">Homex Reality and Development Co. v. Wyoming (Village), [1980] 2 S.C.R. 1011 see also Basu v. Canada, [1992] 2 F.C. 38 (F.C.T.D.))
* * *
SERIOUS ISSUE
[16] Granting this motion would effectively grant the relief the Applicants seek in the underlying application for leave and for judicial review (i.e. deferring removal). This Court must therefore engage in a more extensive review of the merits of the application:
50. Once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests, even if of the opinion that the plaintiff is unlikely to succeed at trial. A prolonged examination of the merits is generally neither necessary nor desirable.
51. Two exceptions apply to the general rule that a judge should not engage in an extensive review of the merits. The first arises when the result of the interlocutory motion will in effect amount to a final determination of the action. This will be the case either when the right which the applicant seeks to protect can only be exercised immediately or not at all, or when the result of the application will impose such hardship on one party as to remove any potential benefit from proceeding to trial. Indeed Lord Diplock modified the American Cyanamid principle in such a situation in N.W.L. Ltd. v. Woods, [1979] 1 W.L.R. 1294, at p. 1307:
Where, however, the grant or refusal of the interlocutory injunction will have the practical effect of putting an end to the action because the harm that will have been already caused to the losing party by its grant or its refusal is complete and of a kind for which money cannot constitute any worthwhile recompense, the degree of likelihood that the plaintiff would have succeeded in establishing his right to an injunction if the action had gone to trial is a factor to be brought into the balance by the judge in weighing the risks that injustice may result from his deciding the application one way rather than the other.
Cases in which the applicant seeks to restrain picketing may well fall within the scope of this exception. Several cases indicate that this exception is already applied to some extent in Canada.
...
54. The circumstances in which this exception will apply are rare. When it does, a more extensive review of the merits of the case must be undertaken. Then when the second and third stages of the test are considered and applied the anticipated result on the merits should be borne in mind.
RJR- MacDonald Inc. v. Canada(Attorney General), [1994] 1 S.C.R. 311
see also: Wang v. Canada(Minister of Citizenship and Immigration) (2001) 204 F.T.R. 5, 13 Imm. L.R. (3d) 289
[17] In Sklarzyk v. Canada (Minister of Citizenship and Immigration), 2001 FCT 336, [2001] F.C.J. No. 579 (QL), Justice Edmond Blanchard accepted this reasoning and held as follows:
The granting of this motion would in effect grant the relief sought in the applicants' underlying application for leave and for judicial review (i.e. deferring removal). In such cases, I accept that the Court must engage in a more extensive review of the merits of the case. Then, when the second and third stages of the test are considered and applied, the anticipated results on the merits should be born in mind. (Emphasis added)
In Moray v. Canada(Minister of Citizenship and Immigration) (30 April 2002), IMM-1751-02 (F.C.T.D.):
...what is in issue in the underlying application for judicial review is the decision of a removal officer not to defer removal with the result that the Court should consider not only whether a serious issue is raised but should consider, in more detail, the merits of the application and the likelihood of success: Wang v. Canada (M.C.I.), [2001] F.C. 682 (T.D.).
[18] The validity of the removal order is not in doubt.
[19] The discretion that a removal officer may exercise is very limited, and in any case, is restricted to when a removal order will be executed. In deciding when it is "reasonably practicable" for a removal order to be executed, a removal officer may consider various factors such as illness, other impediments to travelling, and pending H & C applications that were brought on a timely basis but have yet to be resolved due to backlogs in the system. (Simoes v. Canada (Minister of Citizenship and Immigration) (2000), 187 F.T.R. 219, 7 Imm. L.R. (3d) 141; Paterson v. Canada(Minister of Citizenship and Immigration) (2000), 4 Imm. L.R. (3d) 65 (F.C.T.D.); Jmakina v. Canada(Minister of Citizenship and Immigration) (1999), 3 Imm. L.R. (3d) 198 (F.C.T.D.); Poyanipur v. Canada(Minister of Citizenship and Immigration), [1995] 116 F.T.R. 4 (F.C.T.D.); Wang, above; Pavalaki v. Canada (Minister of Citizenship and Immigration), (10 March 1998), IMM-914-98 (F.C.T.D.), [1998] F.C.J. No. 338 (QL); Olcese v. Canada(Minister of Citizenship and Immigration) (15 April 2002), IMM-1650-02 (F.C.T.D.)
[20] The removal officer is not required to perform a mini-H & C assessment when removal arrangements are in place and the Applicant's removal is imminent. Simoes, above.
[21] The Applicants have not raised a serious argument that they have a legal right to a decision on their H & C applications prior to removal.
[22] There is no legal obligation on the Respondent to defer removal pending an H & C application. This Court has expressed the principle as follows:
The inappropriateness of granting a stay under section 18.2 of the Federal Court Act is particularly marked when the decision whose review is still pending is one under subsection 114(2) of the Immigration Act. Such applications are completely undisciplined: they may be brought at any time and any number of times. One is all too familiar with the pattern of which the events in this case are but an example. A deportation order is issued and is either not attacked in the Court or is attacked unsuccessfully. Months or years go by without it being executed, during which time a subsection 114(2) application may have ben made unsuccessfully or none may have been made. Eventually the deportee is advised that he will be removed on a certain date. Thereafter a subsection 114(2) application is made. Either it is dismissed just before the scheduled departure or it has not yet been determined. An application for leave and for judicial review of the subsection 114(2) decision is launched and a stay of removal is sought. Presumably it is because deportation is not legally dependent on the proper disposition of such applications that no restrictions are placed in the Act on their timing and frequency. While the handling of subsection 114(2) applications requires fairness, the decision is a discretionary one of the kind which the Minister may make either before or after the removal of a person having no legal right to be in Canada. As long as his discretion is exercised on compassionate or humanitarian grounds he may at any time recommend the exemption of any person from any regulation or otherwise facilitate his admission. This is a far ranging power which exists quite independently of the deportation process and neither is dependent on the other. It is true that as a practical matter if a person applies in a timely manner for exemption from the requirement that he must apply for permanent residence from outside Canada, and if it should happen that the Minister exercises his discretion to that end prior to the applicant being deported under an outstanding valid deportation order, he would not have to leave. But that cannot be translated into a legitimate intervention by the Court if in fact a subsection 114(2) application has not been dealt with prior to his lawfully ordered departure.
(Shchelkanov v. Canada(Minister of Citizenship and Immigration) (1994), 76 F.T.R. 151; see also Okoawoh v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 24 (QL); Stampp v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 261 (QL); Matadeen v. Canada (Minister of Citizenship and Immigration) (22 June 2000), IMM-3164-00 (F.C.T.D.); Simoes, above; Csanyi v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 758 (QL); Herrerav. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 660 (QL))
[23] If the Applicants wanted to insure that their application under s. 114(2) of the Immigration Act would be heard prior to their removal, it was incumbent upon them to apply earlier. (Francis v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 31 (QL).)
[24] The Applicants allege that compelling circumstances exist to permit them to stay in Canada arising out of a tsunami in December, 2004. Assuming these allegations are true (which is not admitted), there is no reason given why the Applicants waited until May, 2005 to submit their H & C application.
[25] This motion is an example of the application of the principle outlined in Shchelkanov, above. The Applicants, having been rejected on one H & C application have filed another H & C application, and now seek to defer their removal on that basis.
[26] A removal officer does not even have an obligation to conduct an inquiry akin to a "pre-H & C". There is also no obligation for the officer to receive submissions from the Applicant; however it is noted that in this case, the immigration officer made efforts to review the Applicant's submissions and circumstances. The primary argument presented to the officer to defer removal was that she had a pending H & C application. (Simoes, above; Rettegi v. Canada(Minister of Citizenship and Immigration), 2002 FCT 153, [2002] F.C.J. No. 194 (QL); Williams v. Canada(Minister of Citizenship and Immigration, 2002 FCT 853, [2002] F.C.J. No. 1133 (QL))
[27] The Removal officer considered the extraordinary discretion suggested by the Simoes and Wang decisions.
[28] The Removal officer is not a last-ditch tribunal to consider all of the factors which are properly addressed at other stages of the process. It follows, therefore, that the Removal officer cannot be found to have erred if she did not behave like a last-ditch H & C tribunal. (Davis and Taylorv. Canada (Minister of Citizenship and Immigration), (21 July 2000), IMM-3813-00 (F.C.T.D.); Smith v. Canada(Minister of Citizenship and Immigration), 2001 FCT 388, [2001] F.C.J. No. 632 (QL); Mariona v. Canada(M.C.I.) (19 September 2000), IMM-4829-00))
IRREPERABLE HARM
[29] 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:
Le demandeur, sans explication, n'a pas soumis son propre affidavit au soutien de la présente requête, ce qui m'empêche de conclure qu'il subira un préjudice irréparable en raison de son retour au Pakistan
Mohammad v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1327, [2001] F.C.J. No. 1842; see also Syntex Inc. v. Novopharm Ltd. (1991), 36 C.P.R. (3d) 129 (F.C.A.); Atakora v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 826 (F.C.T.D.); Younge v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 4 (QL); Alonzo v. Canada (M.C.I.), [1998] F.C.J. No. 1794 (QL))
[30] The Applicants allege that "their home" in Chempianpattu has been destoyed in a tsunami. The Applicants have not lived in Sri Lanka for over 9 years. When they left, they were not living in Chempianpattu.
[31] The Applicants contradicted themselves in relating to the Refugee Division about where the adult Applicant's husband lived, in order to make their claim more sympathetic. Their evidence before the Refugee Division was that the husband lived in Mannar.
[32] In the circumstances, the Applicants will not face the harm they allege.
[33] In any event, the Refugee Division noted that the Applicants have extensive family connections in Colombo, which is not affected by the tsunami.
[34] The irreparable harm claimed by the Applicant consists of the consequences of deportation. It is not of the type contemplated by the tri-partite test for granting a stay. As stated by Justice Denis Pelletier:
...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.
Melo v. Canada (M.C.I.), [2000] F.C.J. No. 403 at paras. 20-21 (F.C.T.D.) (F.C.T.D.)
[35] The function of an Enforcement Officer scheduling removal is not to conduct a "last minute" risk assessment. This Court has stated the proposition that "a removal officer may only entertain such an application [for a risk assessment] where the alleged risk is obvious, very serious and could not have been raised earlier". (Jamal v. Canada (Minister of Citizenship and Immigration), 2001 FCT 494, [2001] F.C.J. No. 766)
[36] The risk alleged by the Applicant has already been assessed by the Refugee Division and a PRRA officer, and rejected. This Court has denied review of those decisions. The same allegations of risk cannot now for the basis for an allegation of irreparable harm.
BALANCE OF CONVENIENCE
[37] The Applicants have not met the third aspect of the tri-partite test, insofar as the balance of convenience favours the Minister and not the Applicant. (RJR-MacDonald, above)
[38] The balance of any inconvenience which the Applicant may suffer as a result of removal from Canada does not outweigh the public interest which the Respondent seeks to maintain in the application of the Immigration and Refugee Protection Act, S.C. 2002 c. 27, s. 48)
CONCLUSION
[39] The Applicants have had the opportunity to avail themselves of several mechanisms for seeking to obtain legal status in Canada. The removal of the Applicants at this time would be neither unlawful nor unfair. (Diaz v.Canda (Minister of Citizenship and Immigration) (1997), 135 F.T.R. 235), [1997] F.C.J. No. 1102 (QL).
[40] Therefore this motion is dismissed.
ORDER
THIS COURT ORDERS that the application be dismissed.
"Michel M.J. Shore"
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