Date: 20061003
Docket: IMM-5111-06
Citation: 2006 FC 1171
Ottawa, Ontario,
October 3, 2006
Present: The Honourable Mr. Justice Shore
BETWEEN:
RWIYAMIRIRA, JEAN BOSCO
MUTONI,
ANGEL
MUCO,
PATRICK
Applicants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1]
This is a motion by the applicants for a stay of
their removal order scheduled for October 3, 2006. There is an
underlying application for judicial review of a decision by a Pre‑Removal
Risk Assessment Officer (PRRA) dated July 18, 2006, that the
applicants are not at risk of being tortured or persecuted if they return to
Rwanda. The applicants challenge this decision on the ground that, although the
PRRA Officer may consider only new evidence, he should nonetheless have taken
into account documents regarding their fear of persecution that had been
submitted to the Immigration and Refugee Board (the Board).
[2]
The applicants contend that the PRRA Officer had
to consider these documents because the Board had rejected their claim on the
ground that there were serious reasons to consider that the principal claimant
had committed war crimes, and not because it found no reasonable fear of
persecution. The Board also rejected the applicants’ allegation that they would
face persecution on one of the grounds set out in the Refugee Convention (the
Convention). The PRRA Officer did not have to consider these documents.
[3]
The underlying application does not raise a
serious question. Moreover, the applicants have not established that they would
suffer irreparable harm, and the balance of convenience favours the Minister.
FACTS
[4]
After pursuing a military career, Mr.
Rwiyamirira became the First Secretary at the Rwanda Embassy in Canada in May
1999. In September 1999, a new prime minister was appointed, and Mr. Rwiyamirira was called back to Rwanda. The principal claimant
alleges that he had disagreements with the new ambassador, who threatened his
life if he did not return to his country. The applicants are claiming refugee
protection.
[5]
Their refugee claim was rejected on July 7,
2004. The Board found there were serious reasons for considering that Mr.
Rwiyamirira had committed crimes against humanity, and accordingly, under
paragraphs 1F(a) and 1F(c) of the Convention, he is denied the benefit of
refugee protection in Canada.
[6]
After reviewing “all the documentary evidence
and all the testimony”, the Board also found that the “[principal] claimant
would face no new problems should he return to Rwanda.” The Board did not believe
“that there is a serious or reasonable possibility that [his] children would be
subjected to persecution for any of the reasons contemplated in the Convention
should they return to their country.”
[7]
The Board did not believe that Mr. Rwiyamirira
had received threats, or that he was truly opposed to the government. On the
contrary, the evidence discloses that he rose through the ranks of the Rwandan
Patriotic Front, and only disassociated himself from the government when he
lost his position as First Secretary.
[8]
On May 6, 2005, Mr. Justice Yves de Montigny
dismissed the application for judicial review of the Board’s decision
(IMM-6703-04).
[9]
The applicant’s application to the PRRA was
refused on July 18, 2006, pursuant to subsection 113(a) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act).
[TRANSLATION]
. . . Therefore,
the following documents will not be considered because they were presented at
the IRB hearing or because the applicant could reasonably be expected to have
presented them at that time . . .
(PRRA decision,
applicant’s record, p. 17)
[10]
On September 15, 2006, the applicants brought an
application for judicial review of the PRRA decision.
ANALYSIS
Applicable
tests on stay motions
[11]
In order to assess the merits of the stay
motion, this Court must determine whether the applicants meet the tests
delineated by the Federal Court of Appeal in Toth v. Canada (Minister of
Employment and Immigration), 86 N.R. 302 (F.C.A.), [1988] F.C.J. No 587
(QL).
[12]
In that case, the Federal Court of Appeal
referred to three tests imported from the case law on injunctions, in
particular the Supreme Court of Canada decision in Manitoba (Attorney
General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R.. 110, [1987]
S.C.J. No. 6 (QL):
(a) Is
there a serious question to be tried;
(b) Will
the applicant suffer irreparable harm; and
(c) Which party is favoured by the balance of convenience?
[13]
The three tests must be met in order for this
Court to grant the stay. If even one of the tests is not met, this Court cannot
grant the stay.
[14]
The applicants do not meet any of the tests set
out in Toth, above.
(a) No serious issue
[15]
The determination of risk is essentially a
question of fact and, therefore, considerable deference must be accorded to
that decision. (Singh v. Canada (Minister of Citizenship and Immigration),
2005 FC 145, [2005] F.C.J. No 199 (QL); Harb v. Canada (Minister of
Citizenship and Immigration), 2003 FCA 39, [2003] F.C.J. No. 108 (QL).
[16]
In their written representations as to whether
there is a serious question to be tried, the applicants raise only one
issue—that the PRRA Officer did not consider 27 documents that had been
submitted to the Board.
[17]
Under subsection 113(a) of the Act, the
PRRA Officer may only consider evidence that arose after the refugee claim was
rejected, or was not reasonably available at that time:
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113. Consideration of an
application for protection shall be as follows:
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113. Il est disposé de la demande comme il suit:
|
|
(a) an applicant
whose claim to refugee protection has been rejected may present only new
evidence that arose after the rejection or was not reasonably available, or
that the applicant could not reasonably have been expected in the
circumstances to have presented, at the time of the rejection;
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a) le
demandeur d’asile débouté ne peut présenter que des éléments de preuve
survenus depuis le rejet ou qui n’étaient alors pas normalement accessibles
ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les circonstances,
de s’attendre à ce qu’il les ait présentés au moment du rejet;
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[18]
The applicants submit that the PRRA officer
should have made an exception because the Board had rejected their claim on the
ground that they were excluded from the Convention, and not because it found no
fear of persecution. According to the applicants, “[TRANSLATION] the
grounds for the decision to reject the refugee claim are based solely on the
exclusion” and “the grounds for the fear of persecution were not even
considered.”
[19]
However, a review of the Board’s reasons shows
the opposite. The Board considered all the evidence, and found there was no
serious reason to believe that the applicants would be persecuted if they were
to return to Rwanda:
Given the objectives of peaceful
political change of the AMAHORO party, which the claimant has joined in Canada,
the panel believes he would face no new problems should he return to Rwanda.
Since the panel
does not believe the problems the claimant alleges he has had during his
career, it does not believe there is a serious or reasonable possibility that
the children would be subjected to persecution for any of the reasons
contemplated in the Convention should they return to their country.
(Reasons for
decision of the Board, page 21)
[20]
Since the applicants failed to persuade the
Board that they had a reasonable fear of persecution for a Convention ground,
the PRRA Officer could only consider evidence that arose after their claim for
refugee protection was rejected (subsection 113(a) of the Act).
[21]
The applicants must establish a nexus between
the current situation in their country and their personal situation. The PRRA
Officer was not satisfied that the applicants had established this link in this
case, nor that they would be personally at risk in Rwanda. The PRRA Officer properly
weighed and assessed the documentary evidence in this matter. The findings
based on this evidence are reasonable and can be reasonably inferred.
[22]
Accordingly, the application for judicial review
does not raise a serious question.
(b) No irreparable harm
[23]
The allegations in the applicant’s affidavit are
not sufficient to establish irreparable harm.
[24]
The concept of irreparable harm was defined by
the Court in Kerrutt v.
Canada (Minister of Employment and Immigration) (1992), 53 F.T.R. 93, [1992] F.C.J. No. 237 (QL) as
the removal of a person to a country where his safety or life are in jeopardy.
In the same decision, the Court also found that mere personal inconvenience or
family separation do not constitute irreparable harm.
[25]
It is not sufficient for an applicant to allege
harm in an affidavit. Where the harm consists of a fear of mistreatment should
he return to his country, he must adduce evidence of an objective basis for
this fear: Gogna v. Canada (Minister of Employment and Immigration)
(1993), 68 F.T.R. 140, [1993] F.C.J. No. 817 (QL).
[26]
In this case, the applicants have had the
benefit of both a refugee claim hearing before the Board and a PRRA, and have
been unable to establish that they would be personally targeted were they to
return to Rwanda; thus, they have not established irreparable harm.
(c) Balance of convenience
[27]
In the absence of serious questions and
irreparable harm, the balance of convenience favours the Minister, who has an
interest in having the removal order executed as scheduled (Mobley v. Canada
(Minister of Citizenship and Immigration), [1995] F.C.J. No. 65 (QL).
[28]
In Membreno-Garciav v. Canada (Minister of
Employment and Immigration), [1992] 3 FC 306, [1992] F.C.J. No. 535
(QL), Justice Barbara Reed discussed the issue of balance of convenience on a
stay motion and the public interest that must be considered:
What is in issue, however, when
considering balance of convenience, is the extent to which the granting of
stays might become a practice which thwarts the efficient operation of the
immigration legislation. It is well known that the present procedures were put
in place because a practice had grown up in which many many cases, totally
devoid of merit, were initiated in the court, indeed were clogging the court,
for the sole purpose of buying the appellants further time in Canada. 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. This is the public interest which in my
view must be weighed against the potential harm to the applicant if a stay is
not granted.
[29]
The applicants have failed to establish that a
serious question or irreparable harm exists, and these factors tip the balance of
convenience in favour of the Minister of Citizenship and Immigration.
CONCLUSION
[30]
For all the above
reasons, this motion to stay is dismissed.
ORDER
THE COURT
ORDERS that the motion for a stay of the
enforcement of a removal order be dismissed.
“Michel M.J. Shore”
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