Date: 20060628
Docket: IMM-3395-06
Citation: 2006
FC 830
Toronto, Ontario, June 28, 2006
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
GERALD
LIZANO CHAVEZ, FRANCELLA SOSSA BRENES, KIMBERLY LIZANO SOSSA, GERALD LIZANO
SOSSA
Applicants
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is a
motion for an Order staying the removal of the applicants, currently scheduled
to take place on July 2, 2006, until such time as an application for leave and
for judicial review has been disposed of by the Court. The underlying application
is for judicial review of the decision of an Expulsions Officer, communicated
to the applicants on June 19, 2006, refusing to defer their removal.
BACKGROUND
[2]
The
applicants are a family from Costa
Rica. Mr. Gerald
Lizano Chavez, has been in Canada since May 2001. His wife,
Francella Sossa Brenes, and their children Gerald and Kimberly arrived later
that year. A third child, Joshlynn, was born in Canada.
[3]
The applicants
made a claim for refugee protection on May 28, 2002. Their claim was heard
jointly with that of Ms. Sossa Brenes’ brother, Guillermo, over three days in
December 2002, March and July, 2003 and a decision was rendered by the Refugee
Protection Division, Immigration and Refugee Board, on September 8, 2003. The
Board found that as adequate state protection was available to the claimants in
Costa Rica, there was no serious
possibility that they would be persecuted in that country and were not persons in
need of protection within the meaning of section 97 of the Immigration and
Refugee Protection Act S.C. 2001, c.27 (the “Act”). Leave for judicial review of that
decision was subsequently denied.
[4]
An
application for a pre-removal risk assessment (“PRRA”) was filed on the
applicants’ behalf on July 12, 2004. As their removal was then scheduled for
September 1, 2004 and they were beyond the deadline for an administrative stay,
the applicants applied for and were granted a stay of execution of the removal
order by this Court until such time as the PRRA was completed. In a decision
dated December 8, 2004, the officer conducting the assessment found that the
applicants had submitted no new evidence of risk and had failed to rebut the
presumption of state protection. The officer considered the applicants’
evidence and the documentary evidence respecting the availability of state
protection and the treatment of children in Costa Rica.
[5]
Removal
was again scheduled. On February 14, 2005, just two days before the new removal
date, the applicants applied to this Court for a further stay. Justice James
O’Reilly refused to hear the motion for several reasons: no serious issue had
been identified; the underlying application was out of time and no principled
justification for an extension of time had been disclosed in the applicants’
submissions; the applicants’ sole ground for requesting a stay was that they
had purportedly filed (this was disputed) an application for humanitarian and
compassionate consideration; no request for deferral had been made; the
applicants had had several months to make arrangements for their departure; and
no explanation for the last minute motion had been provided.
[6]
The
applicants failed to appear for removal as directed on February 16, 2005 and as
a result warrants for their arrest were issued. On April 27, 2006 Ms. Sossa was
arrested. Mr. Lizano was not
present at the time and Ms. Sossa did not disclose his whereabouts but advised
the Canada Border Services Agency officers that Kimberly and Gerald were at
school. The officers picked up the two children from their school and took them
with their mother to the Immigration Holding Centre. The children were later
released. A detention hearing was held for Ms. Sossa on May 2, 2006 and
detention was continued with a further review scheduled for May 9th.
[7]
On May 8,
2006 the applicants’ counsel requested deferral of the applicants’ removal
until the end of the school year, offered to have Mr. Lizano surrender and
indicated that his clients were willing to purchase their own tickets to return
to Costa Rica. After some discussion, it
was agreed that Mr. Lizano would surrender on May 9, 2006 and that both he and
his wife would be released on a cash bond on the understanding that they would
produce airline tickets for the family to depart no later than July 2, 2006.
The surrender took place; both adult applicants were released and returned on
May 12, 2006 with the tickets for a July 1, 2006 departure. On May 19, 2006,
they were served with a direction to report, along with the two minor
applicants, for removal on July 1, 2006.
[8]
Subsequent
to these events, the family made a new PRRA application that was received by
the PRRA unit on June 5, 2006. They also submitted an application for permanent
residence based on humanitarian and compassionate grounds (“H&C”), which
was received by the processing centre on May 24, 2006. On June 6, 2006 the
family requested deferral of their removal based on the filing of these two
applications. The decision of the expulsions officer refusing the request was
communicated to counsel for the applicants on June 19, 2006.
ISSUES
[9]
In
considering this motion, I must apply the conjunctive tripartite test, set out in Manitoba (Attorney General) v.
Metropolitan Stores Ltd,
[1987] 1 S.C.R.
110 and R.J.R. MacDonald Limited v. Canada (Attorney General.) [1994] 1.
S.C.R. 311 and applied by the Federal Court of Appeal to stays of deportation
in Toth v. Canada (Minister of Employment and Immigration) (1988), 86
N.R. 302, namely that there is a serious issue to be tried, that the applicants
would suffer irreparable harm if removed to their country of origin and that
the balance of convenience lies in their favour.
[10]
An elevated standard applies to a stay motion
arising from a refusal to defer an applicant’s removal because, if ordered, the
stay effectively grants the relief sought in the underlying judicial review
application: Wang v. Canada (Minister of Citizenship and Immigration), 2001 FCT 148 (T.D.). Accordingly, it is necessary to go further
than to simply consider the serious issue test and to closely examine the
merits of the underlying application.
[11]
In their
written submissions on this motion with respect to the serious issue branch of
the Toth test, the applicants contend that the officer was required to
provide reasons for her decision and had failed to do so, that deferral should
have been granted in light of the newly filed H&C and PRRA applications and
that the best interests of the children had not been considered by the expulsions
officer.
[12]
In oral
argument at the hearing, counsel for the applicants chose to focus his
submissions primarily on the effect of the publicity generated by the
apprehension of the minor applicants at their school on April 27, 2006,
extensively covered by the media in Canada and in Costa Rica, as new evidence of
a heightened the risk of harm to the applicants upon their return.
ANALYSIS
[13]
In
this motion, the applicants seek the exercise of the Court’s extraordinary
discretionary authority to stay the execution of valid removal orders. This
Court has frequently held that the equitable remedy of a stay can be denied to
those who do not come to the Court with clean hands, in that they have deliberately disobeyed
or ignored the law: Manohararaj v. Canada (Minister of Citizenship and
Immigration), 2006 FC 376.
[14]
On the face of the record before me, the applicants have failed to
report for removal as required and failed to keep the immigration authorities
apprised of their whereabouts resulting in the issuance and execution of
warrants for their arrest. This alone would justify dismissal of the motion.
[15]
The applicants allege that they were misled by their former
lawyer. They allege that they believed that the lawyer had filed an H&C
application on their behalf and kept the immigration authorities informed as to
their whereabouts. They assert that they believed that they could wait for the
outcome of the H&C application and disregard the direction to report for
removal in February 2005.
[16]
An allegation about misfeasance or nonfeasance by a lawyer
is easily made and difficult to disprove unless the lawyer is given notice and
an opportunity to respond. Counsel advised me during the hearing that no notice
was given to the lawyer in question that his professionalism was to be impugned
in these proceedings, and no complaint had been made to the Law Society. That
alone would be sufficient to discount the allegation. But even if the lawyer
failed to adequately represent their interests, the responsibility to comply
with the law rests with the applicants and not the lawyer. It was their
responsibility to abide by the removal order and to keep the immigration
authorities informed. Justice O’Reilly’s Order of February 15, 2005 made it
clear that no H&C application had been received by Citizenship and
Immigration. The applicants were thus put on notice that the application had
not been filed and they remained subject to the removal order.
[17]
With
respect to the question of the expulsion officer’s reasons, as I stated in Boniowski
v. Canada (Minister of Citizenship and
Immigration),
2004 FC 1161, deferral decisions involve the exercise of a very narrow
discretion by the officer and the procedural requirements are, at best,
minimal. In any event, the failure of the applicants to request the officer’s
reasons in the form of her notes to file is a complete answer to this
complaint: Marine Atlantic Inc. v. Canadian Merchant Service Guild
(2000), 258 N.R. 112 (F.C.A.).
[18]
A removals officer’s discretion is limited to
considering compelling personal circumstances that may preclude the exercise of
the Minister’s duty to enforce the Act. Subsection 48(2) provides that "[i]f
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." There
is no obligation on the part of the officer to defer removal pending an H&C
application. To hold otherwise, as Justice Simon Noël has observed,
"would, in effect, allow claimants to automatically and unilaterally stay
the execution of validly issued removal orders at their will and leisure by the
filing of the appropriate application. This result is obviously not one which
Parliament intended”: Francis v. Canada (Minister of
Citizenship and Immigration) [1997] F.C.J. No. 31 at paragraph 2 (T.D.)
(QL).
[19]
The filing
of a fresh PRRA application may signal that there is new evidence of risk to
the applicants in their country of origin that was not considered in any
earlier risk assessment. Counsel’s letter of June 1, 2006 to the PRRA Unit
states that the media attention in Costa Rica
arising from the case had resulted in a well-founded fear that the applicants
would be at risk upon return and that their high profile would make it harder
for the Costa Rican government to protect them. The letter cites as an
illustration, an article published in the Diaro Extra on May 1, 2006 quoting
Ms. Sossa’s brother, Wendell, as to the reasons for the family’s fear of
return. Other excerpts filed on this motion from the Costa Rican papers, in the
original Spanish and in English translation, report the story and indicate the
precise date on which the family is expected to return.
[20]
However,
the evidence of risk is materially the same as that presented by the applicants
to the Refugee Protection Division in their claim for protection and in their
first PRRA application. The applicants allege that they are at risk of harm
from elements of the Office of Judicial Investigation (a police agency) in Costa Rica through the involvement of
two of Ms. Sossa’s brothers, Guillermo and Henry, in exposing the activities of
corrupt officers.
[21]
The expulsion
officer’s notes were filed as part of the respondent’s record on this motion.
The notes make it clear that the officer considered the allegation of increased
risk due to media coverage of the case but concluded that a deferral to await
the outcome of the new PRRA was not appropriate in the circumstances and
history of the case, including the fact that any disclosure of information had
been at the instance of the applicants.
[22]
It was
inappropriate for the officer to attribute the media attention to the
applicant’s actions as there was no evidence before her that they had
instigated the publicity. Rather, it stemmed from the incident involving the
apprehension of the children, which attracted criticism about the enforcement
procedures of the respondent’s officers. It was not surprising that such
attention would spread to Costa
Rica or that
details about the case, including the new removal date, would be disclosed.
[23]
Nonetheless,
the officer did not err in my view in concluding that there had not been such a
change of circumstances as would justify a finding that removal “as soon as
practicable” could not be effected. As Justice
Dubé observed in Jamal v. Canada (Minister of Citizenship and Immigration) 2001
FCT 494 (T.D.), persons who allege a new risk at the eleventh hour do so at the
peril that it will not be given much weight. As he stated at paragraph 7,
"...a removal officer may only entertain such an application where the
alleged risk is obvious, very serious and could not have been raised
earlier."
[24]
Two
tribunals had previously found that the applicants had failed to rebut the
presumption that the state of Costa
Rica would be
willing and able to provide protection to them. There would have had to be
clear and objective evidence before the officer that the factual situation in Costa Rica had changed significantly
with respect to the central finding in those previous risk assessments. There
was no evidence submitted to the officer, nor to the Court on this motion, that
the authorities in Costa
Rica would no
longer be able to provide state protection as a result of the media attention.
Indeed the evidence suggests that the Costa Rican government has expressed
concern about the applicants, indicating a willingness to provide protection
rather than an unwillingness to do so.
[25]
I am also
satisfied that the expulsions officer adequately considered the interests of
the children, including the Canadian born child. The reality is that the
youngest child must accompany the family unless they wish to make arrangements
to leave her with relatives in this country. That is their choice to make, not
the officer’s. With respect to the older children, a deferral was granted to
allow them to complete their school year. This flexible accommodation was, in
my view, consistent with the legislative mandate to enforce removal “as soon as
is reasonably practicable”. But the officer was not required to go further to
consider whether the children’s longer term interests would be better served in
Canada than in Costa Rica. That function is served by the exercise of the
Minister’s discretion under s.25 of the Act.
CONCLUSION
[26]
I find that
the applicants have not established that there is a serious issue to be tried
with respect to the expulsion officer’s decision to refuse a further deferral. Accordingly,
this motion will be dismissed. If it was necessary to consider whether the risk
of irreparable harm had been established, I would conclude, for reasons similar
to those expressed above, that it has not been made out. Further, in light of
the applicants’ failure to comply with the law in the past, the balance of
convenience branch of the Toth test does not favour them.
[27]
I note in
concluding that a considerable amount of material has been filed on this motion
from supporters of the Lizano-Sossa family, attesting to their hard work in
establishing themselves within the community since arriving here and to their
personal attributes. These factors will no doubt be taken into consideration in
the family’s current H&C application which can continue, despite their
removal. However that is a decision for the Minister to make, not the Court.
[28]
As a
procedural matter, the style of cause on this motion will be amended to reflect
the change in Ministerial responsibilities for the Canada Border Services
Agency from the Minister of Citizenship and Immigration to the Minister of
Public Safety and Emergency Preparedness.
ORDER
THIS COURT ORDERS that the application for a stay of
removal is dismissed. The style of cause is amended to replace the title of the
respondent with that of the Minister of Public Safety and Emergency
Preparedness.
“Richard
G. Mosley”
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