Date: 20051128
Docket: IMM-6770-05
Citation:
2005 FC 1609
Ottawa, Ontario, November 28, 2005
PRESENT: THE HONOURABLE
MR. JUSTICE HARRINGTON
BETWEEN:
ALBERT
BALL, MARINA BALL AND GERMAN BALL
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
Docket:
IMM-6614-05
AND BETWEEN:
ALBERT BALL
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR
ORDER
HARRINGTON J.
[1]
Things are
not going well for the Ball family—the father Albert, the mother Marina, the
sons German and Adam and the daughter Sonia. Albert, Marina and German filed a
refugee claim, which was rejected, and now Albert is under a removal order. He
must report for removal to Israel on December 5, 2005. To
date, no order has been issued for Marina and German to report for removal.
[2]
The family
does not want to leave Canada. However, if they must,
Albert wishes to return to Israel, while Marina wishes to
return to Russia. Albert and Marina each want
custody of their three children.
[3]
Albert and
Marina are currently in a separation from bed and board proceeding in the
Quebec Superior Court. The hearing will be held on December 8, 2005 and could
cover a number of issues, including child custody. It is therefore essential
that consideration be given to Albert’s chances of obtaining custody of the
children if he is in Israel while Marina and the children
are here in Canada.
Facts
[4]
Albert was
born in Russia to a Jewish father and a
Christian mother. He considers himself a Christian. Marina was also born in Russia, but to two Christian
parents. Their eldest son, German, now 15 years old, was also born in Russia. Their younger children,
Sonia and Adam, were both born in Canada.
[5]
In 1996,
Albert invoked his right of return to Israel
on the basis of his Jewish ancestry and moved with Marina and German to Israel. However, the Ball family
was not happy in Israel because of the discrimination
they suffered from being not only Russian but also Christian.
[6]
In
November 1999, Albert moved with his family from Israel to Canada, where he immediately claimed
refugee protection. In May 2002, the Immigration and Refugee Board (IRB)
rendered a negative decision on the applicant’s claim. The Federal Court
dismissed the application for leave and judicial review submitted by the
applicant for the purpose of challenging the IRB decision. The applicants
subsequently submitted an application under the post-determination refugee
claimant in Canada (PDRCC) class, which became an application for pre-removal
risk assessment (PRRA).
[7]
In the
meantime, Marina gave birth to Sonia in 2002 and to Adam in 2004. On
September 21, 2005, the PRRA officer rendered a negative decision on the
applicant’s PRRA application for Albert, Marina and German. It should be noted
that, since Sonia and Adam both have Canadian citizenship, they are not subject
to the removal order. However, they are much too young to be able to
appreciate what is at stake. The negative decision by the PRRA officer is the
subject of an application for a stay of proceedings before this court,
IMM-6770-05.
[8]
As a
result of the negative decision on the PRRA, the family was summoned to an
interview on October 13, 2005 with the Canada Border Services Agency to
discuss their removal. All five members of the family attended. At the
meeting, Marina informed Immigration Officer Meloche that she and Albert
had been separated since February 2005 and that she wished to return to Russia,
not Israel. Albert informed Officer Meloche that he was about to take legal
action to obtain custody of the children. Officer Meloche scheduled another
meeting with Albert for October 31, 2005. At that meeting, Albert filed
documents concerning the separation proceedings initiated in the Quebec
Superior Court. Officer Meloche called the documents invalid, because they
were approved by a “special clerk,” and ordered that Albert be removed on
December 5, 2005, as planned.
[10]
A
priori, it
should be understood that these reasons relate not only to IMM-6614-0, but also
to IMM-6770-05. There was no evidence introduced before this Court to indicate
that a date had been set for the removal of Marina and German.
Issues
[11]
There are
two issues for consideration, each separately. The first relates to IMM‑6770‑05.
Did the applicants meet the tripartite test set out in Toth v. Canada
(Minister of Citizenship and Immigration) (1988), 86 N.R. 302, that is, did
they raise a serious issue, would they suffer irreparable harm, and does the
balance of convenience favour them? The second issue relates to file
IMM-6614-05. Should the Court grant a stay of execution of Albert Ball’s
removal order? It should also be mentioned that the applicant refers to
paragraph 50(a) of the Immigration and Refugee Protection Act (the
Act).
50. A removal order
is stayed
(a) if a decision that was made in a judicial proceeding
-- at which the Minister shall be given the opportunity to make submissions
-- would be directly contravened by the enforcement of the removal order;
|
50. Il y a sursis de
la mesure de renvoi dans les cas suivants :
a) une décision judiciaire a pour effet direct d'en empêcher
l'exécution, le ministre ayant toutefois le droit de présenter ses
observations à l'instance;
|
[12]
The
problem with the applicant’s reliance on subsection 50(a) of the
Act is that the Minister was not served as an added party and therefore cannot
offer his submissions in the proceedings.
Negative Decision by the PRRA Officer
[14]
The
applicant argues that the decision by Officer Meloche is patently unreasonable
because the officer considered the situation only in Russia and not in Israel.
The applicant must discharge the burden of proof by introducing evidence
concerning his PRRA application. Since the applicant submitted no evidence
concerning the situation in Israel, he cannot subsequently criticize the
officer’s failure to analyse the situation there. Section 113 of the Act
is clear on what must be included in a PRRA application. Furthermore,
subsection 161(2) of the Immigration and Refugee Protection Regulations,
SOR/2002‑227, stipulates that it is up to the applicant to submit any new
evidence:
|
161. (1) A person
applying for protection may make written submissions in support of their
application and for that purpose may be assisted, at their own expense, by a
barrister or solicitor or other counsel.
New
evidence
(2) A person who makes
written submissions must identify the evidence presented that meets the
requirements of paragraph 113(a) of the Act and indicate how that
evidence relates to them.
|
161. (1) Le demandeur peut
présenter des observations écrites pour étayer sa demande de protection et
peut, à cette fin, être assisté, à ses frais, par un avocat ou un autre
conseil.
Nouveaux
éléments de prevue
(2) Il désigne, dans ses observations
écrites, les éléments de preuve qui satisfont aux exigences prévues à
l'alinéa 113a) de la Loi et indique dans quelle mesure ils
s'appliquent dans son cas.
|
[15]
The
applicants cannot simply submit an application for a PRRA and then assume that
the officer will consider all the factors, even if they are not presented to
him. The burden of proof rests on the applicants, as stated by Von
Finckenstein J. in Hailu v. Canada (Solicitor General), [2005] F.C.J.
No. 268 (QL).
[16]
Despite
the applicant’s claims, none of the documents presented before this Court has
demonstrated that a serious issue is raised. The burden of proof lies on the
applicants and they have not met that burden. Therefore, the Court cannot
grant a stay of execution of the PRRA officer’s negative decision.
Enforcement of a Removal Order
[17]
The Court
takes strong exception to the basis of the decision by Officer Meloche
concerning the removal order against the applicant. Where a removal order is
concerned, it is clear from the wording of section 48 of the Act that the
removal must be enforced as soon as is reasonably practicable.
|
48. (1) A
removal order is enforceable if it has come into force and is not stayed.
(2) If 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.
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48. (1) La
mesure de renvoi est exécutoire depuis sa prise d'effet dès lors qu'elle ne
fait pas l'objet d'un sursis.
(2)
L'étranger visé par la mesure de renvoi exécutoire doit immédiatement quitter
le territoire du Canada, la mesure devant être appliquée dès que les
circonstances le permettent.
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[18]
Officer
Meloche’s affidavit is the key document influencing this Court’s decision and
is included in the respondents’ written submissions in IMM‑6614‑05.
It is clear from the interview with the Ball family that Albert and Marina
initiated separation proceedings for a number of reasons, inter alia, because
Albert wished to return to Israel and Marina to Russia with the children.
Also, Albert argued before this Court that, because he had invoked his right of
return to Israel, he could not return to Russia. However, there is no evidence
to support this in the documentation.
[19]
The real
problem with Officer Meloche’s reasoning is that he described the order by
the Quebec Superior Court as being invalid. In my opinion, he completely
misunderstood the significance of the order. Officer Meloche appeared to
be alluding to the fact that it was not an official order, since the document
was signed by a “special clerk”. Unfortunately, this interpretation is
completely wrong. This type of order is as valid as a Superior Court order
signed by a judge, just as an order by a prothonotary is as valid as an order
by a Federal Court judge.
[21]
As was
stated in the preceding, it is equally significant that paragraph 50(a)
of the Act states that a decision made in a judicial proceeding has the direct
effect of staying enforcement of the removal order if the Minister has had an
opportunity to make submissions. In the instant case, the Minister was unaware
of the proceedings before the Quebec Superior Court, because the parties failed
to serve him as an added party with respect to the application to be heard on
December 8, 2005, at their own peril. They cannot rely on
paragraph 50(a) unless the Minister has, in fact, been served.
[22]
It is also
important to note that Mr. and Mrs. Ball also have two young children who
are Canadian citizens and that the Superior Court order makes it clear that
neither parent may leave Canada with the children without the consent of the
other parent. Of course, the two Canadian children have the right to remain
here, while German does not. In Alexander v. Canada (Solicitor General), [2005]
F.C.J. No. 1416 (QL), Dawson J. dismissed an application for judicial review of
a decision by a deportation officer that the removal order concerning the applicant
was still enforceable, despite a court order granting custody of her children
but prohibiting them from leaving Ontario. Again, that case does not apply to
the facts here, especially since the Minister never had an opportunity to make
submissions. In another vein, however, Dawson J. discusses the special case of
a young child with Canadian citizenship, stating at paragraph 31:
First, after awarding custody to Ms. Alexander, the
orders went on to provide that Ms. Alexander's children "shall not be removed
from the Province of Ontario". Applying the grammatical and ordinary sense
of the phrase "directly contravened", as found in subsection 50(a) of
the Act, I find that the orders would only be directly contravened if either of
Ms. Alexander's children were removed from Ontario. The removal order applies
only to Ms. Alexander, because her two children are Canadian citizens who enjoy
an absolute right to remain in Canada. Thus, the removal order does not
interfere with the physical location of Ms. Alexander's children. Faced with
removal, Ms. Alexander could (as she had earlier contemplated if her request
for a stay was unsuccessful) apply to the Ontario Court of Justice for a
variation of its order, or Ms. Alexander could make arrangements to leave her children
in Canada. Neither of those options would contravene the interim or final
order.
[23]
While the
application for a stay of execution in Alexander, supra, was dismissed
because the children were Canadian citizens, we must not forget that, in this
case, German cannot remain in Canada for the time being. Thus, a custody order
prohibiting the children from leaving Canada is a problem with respect to
German. While it is true that the removal order does not currently affect the
tenor of paragraph 50(a) of the Act, this is only because the
Minister has not yet had an opportunity to make his submissions, which will
have to be done.
[24]
The notion
that Albert may be removed without having an opportunity or the right to make
his arguments for custody of his children is unjust. Under
subsection 48(2) of the Act, it is unjust to determine that it is
reasonably practicable for Albert to be removed from Canada, since he must be
given an opportunity to be a party to proceedings regarding his children’s
custody.
[25]
The respondents
argue that the applicant does not meet the tripartite test set out in Toth,
supra. According to the test in Toth, supra, this is clearly a
serious issue, as Mr. Ball is under a removal order while a party to a dispute
over custody of his children. It is also obvious that he will suffer
irreparable harm because he will have no opportunity to present his case in the
custody hearing and, finally, on the balance of convenience, it is ridiculous
to believe that, after having spent five years in Canada, he cannot remain here
another three days in order to participate in the custody hearing.
Conclusion
[26]
For the
foregoing reasons, first, the Court dismisses the motion to stay the negative
decision by the PRRA officer. Second, the Court stays Albert Ball’s removal
order pending the application for leave and judicial review of the decision by
Officer Meloche and, if granted, judicial review of that decision. The Court
also reminds the parties that paragraph 50(a) of the Act is only
applicable if the Minister is served as an added party in order to make
submissions during the hearing on December 8, 2005.
“Sean Harrington”
Ottawa,
Ontario
November
28, 2005
Certified
true translation
Michael
Palles
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