Date: 20060919
Docket: IMM-5042-06
Citation: 2006
FC 1123
Ottawa, Ontario, September 19, 2006
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
NICOLE
AMANDA SIMMONS
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
[1]
In three
days time, Ms. Simmons is scheduled to be removed to St. Vincent, from where she ran away some years ago
to escape her vicious husband. St. Vincent is a small island, and the evidence,
as imperfect as it is, indicates there are no women’s shelters on the island.
[2]
Ms.
Simmons’ application for refugee status, or as a person otherwise in need of
protection, was dismissed in 2004. Since then, in accordance with the Immigration
and Refugee Protection Act (IRPA) she sought a pre-removal risk assessment
(PRRA) pursuant to Sections 112 and following thereof. She also asked that she
be permitted to apply for permanent residence status while remaining in Canada because of humanitarian and
compassionate considerations (H&C), as contemplated by Section 25 of the
Act. That application has been outstanding for some fifteen months.
[3]
The PRRA
was negative. She has applied for leave and judicial review of that decision.
That application does not stay her removal. An enforcement officer was charged
with the responsibility of removing her from Canada as soon as “reasonably practicable”, to
use the words of Section 48 of the Act. The enforcement officer was asked to defer
the removal until a final decision on her application to this Court on the
negative PRRA decision, and, as well, to await the outcome of the H&C
application. She refused, and so Ms. Simmons has moved this Court for a
judicial stay. Her motion is granted.
[4]
With
respect to deferring her removal pending the outcome of the application for
judicial review of the PRRA, a psychological assessment, and update were filed.
The enforcement officer passed on those reports to Medical Overseas Services
who are often retained in these matters. One of the doctors sent his assessment
to the enforcement officer who in her notes simply says that he had reviewed
the reports “and did not agree with the opinion. He further states that basic
medical care is available in St.
Vincent.”
[5]
It is well
established that a stay is an extraordinary remedy not to be granted unless
there is a serious underlying issue, risk of irreparable harm and the balance
of convenience favours the applicant (Toth v. Canada
(Minister of Employment and Immigration) (1988), 86
N.R. 302 (FCA)).
[6]
As to the
serious issue, R.J.R.-MacDonald Inc. v. Canada (Attorney General),
[1994] 1 S.C.R. 311 is authority for the proposition that unless the claim on
the merits appears to be frivolous or vexatious, a motions judge must, as a
general rule, consider the second and third parts of the tri-partite test.
[7]
In this instance,
the enforcement officer relied on a doctor’s opinion which was not put to Ms.
Simmons. Indeed, we do not know what was in the opinion. It is certainly not
frivolous to argue, as Ms. Simmons has, that she should have been given an
opportunity to see the material, or at least the gist of it, and to have the
opportunity to comment thereon. If visa officers have concerns with respect to
prospective immigrants, they must disclose those concerns in order to give the
applicant an opportunity to respond in a meaningful way (Khyaja v. Canada
(Minister of Citizenship and Immigration), [2006] F.C.J. No. 703 (QL), Guo
v. Canada (Minister of Citizenship and Immigration), 2006 FC 626, [2006] F.C.J.
No. 795). Can it be that the same duty is not owed when irreparable harm is in
issue? See Pancharatnam v. Canada (Solicitor General) 2004 FC 867, [2004] F.C.J. No. 1056.
[8]
A second
serious issue is the pending H&C application. The enforcement officer was
willing to defer removal for a few months so that Ms. Simmons would not lose a
rental deposit, provided she paid her own way back to St. Vincent. Yet she was not prepared to await the
outcome of the H&C application. She pointed out, which is trite but true,
that a pending H&C application does not result in an administrative stay.
However, that was not the issue she was required to consider. She should have
considered whether the application had been filed in a timely matter and
whether the reason there was no decision was a backlog in the system. She took
the view that pending H&C applications took one to three years. She did not
explain where she got those figures. Information from Citizenship and
Immigration’s website suggests, albeit with nuances, that such an application
normally takes fifteen months. She had the discretion to await the pending
decision on the H&C application (Poyanipur v. Canada (Minister of Citizenship and
Immigration)
(1995), 116 F.T.R. 4, Simoës v. Canada (Minister of Citizenship and
Immigration) (2000), 187 F.T.R. 219). It is arguable she fettered that
discretion.
[9]
As to
irreparable harm, Ms. Simmons’ fear thereof is at the very heart of her PRRA
and H&C applications. Her evidence has always been accepted. She was
regularly beaten, and physically and sexually abused. Her husband came to her
place of work and ripped off her clothes in front of co-workers. She is
entitled to her day in a Canadian court.
[10]
The
balance of convenience certainly favours Ms. Simmons, particularly taking into
account that she did not file a last minute H&C application. It has been
outstanding for over fifteen months.
ORDER
THIS COURT ORDERS that:
1.
The motion
is granted.
2.
The
removal of Ms. Simmons scheduled for 22 September 2006 is stayed until the
final disposition of the application for leave and for judicial review herein.
“Sean Harrington”
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