Ivanov v. Canada (Minister of Citizenship and Immigration), 2002 FCT 188

                                                                                                                                             Date: 20020221

                                                                                                                                  Docket: IMM-622-02

                                                                                                                   Neutral Citation: 2002 FCT 188

Between:

                                                                      IGOR IVANOV

                                                                    IRINA SOKOVA

                                                                    DIANA SOKOVA

                                                                                                                                                      Applicants,

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                    Respondent.

                                                            REASONS FOR ORDER

KELEN J.

[1]         The applicants, originally from Estonia, seek an order staying the execution of a removal order received on January 24, 2002. The immigration authorities intended to remove the applicants from Canada on February 13, 2002 and this application for a stay was filed and heard by teleconference on February 12, 2002.

[2]         The applicants were found on January 24^th, 2001 by the Convention Refugee Determination Division of the Immigration and Refugee Board not to be convention refugees as required by the

Immigration Act. An application was filed for leave for judicial review before the Federal Court, which was dismissed by Lemieux J. on April 24, 2001. On November 27, 2001 the applicants applied under subsection 114(2) of the Immigration Act for special consideration on humanitarian and compassionate grounds to allow the applicants' immigration application to be processed from

within Canada ("H & C application"). While that application was still pending at the Department of Citizenship and Immigration, the applicants received on January 24^th, 2002 an order that they must report for removal to the United States on February 13^th, 2002.

[3]         The applicants are a family from Estonia; mother, daughter, and step-father. While the mother is a citizen of Estonia, her husband and daughter are not citizens of Estonia, due to the political and historical circumstances in Estonia. The step-father is considered Russian by the Estonian Government because his parents are Russian, and he was born in Estonia during the Russian occupation of that country. He has never lived in Russia and is not a citizen of Russia. The citizenship of the daughter is uncertain.

[4]         The applicants came to Canada via the U.S. on May 3, 2000, and immediately submitted an application for refugee status. Under a reciprocity agreement with the U.S., the applicants will be removed to the U.S. since they entered Canada from that country. However, the applicants do not have any legal status to remain in the U.S. Accordingly, they may be kept in a refugee centre pending deportation. If the applicants have no legal right to enter Estonia for the reasons discussed above, they may simply re-present themselves at the Canadian border in three months and make a new refugee claim. (This has been referred to as the "revolving door approach to refugee claims".)

[5]         The applicants requested that immigration enforcement officer Tracey Elia defer their deportation until the end of the school year (i.e. June 30^th, 2002) so that the applicants can organize their legal right to live again in Estonia, can allow their daughter to finish Grade 2 in Barrie, Ontario, can have their H & C application processed, and can avoid being sent to the U.S. where they have no legal status or established connections. This delay will permit the applicants to make travel arrangements so that they can return to Estonia as a family unit, and not be removed to the United States.

[6]         The immigration enforcement officer declined to defer the execution of the removal order, and the applicants brought this application for judicial review of that decision not to defer. The applicants also brought this application for an interim stay of the execution of the removal order until the end of June, 2002.

TEST FOR A STAY

[7]              The decision of Pelletier J. (as he then was) in Wang v. M.C.I., [2001] 3 F.C. 682, [2001] F.C.J. No. 295 (F.C.T.D.) sets out that the "serious issue" test, in cases of judicial review of an immigration officer's decision refusing to defer a removal order due to a pending H & C application, must be more stringent than the tripartite test set out in Toth v. Canada (Minister of Citizenship and Immigration) (1988),6 Imm. L.R. (2d) 123 (F.C.A.).    Justice Pelletier held at paragraph 10:

I am therefore of the view that where a motion for a stay is made from a removal officer's refusal to defer removal, the judge hearing the motion ought not simply apply the "serious issue" test, but should go further and closely examine the merits of the underlying application.

[8]         The applicants must prove not only the existence of a serious issue, the likelihood of irreparable harm, and that the balance of convenience favours them, but that their case has a likelihood of success. Further, the ordinary results of removal, such as relocation and separation from an established setting, are not considered adequate grounds for a finding of irreparable harm. The conditions of an applicant must be such that the likely result of a removal will render nugatory any subsequent success at an H & C application, by example being returned to a country where torture, imprisonment or death is likely. Alternatively, it must be shown to the Court that the special circumstances of the applicant warrant a stay of removal.

REVOLVING DOOR APPROACH TO REFUGEE CLAIMS

[9]         As a preliminary issue, the "revolving door approach to refugee claims" referred to above, was addressed by McGillis J. in Jmakina v. M.C.I. [1999] F.C.J. No. 1680 (F.C.T.D.) at paragraph 29 is relevant to the case at bar. Madame Justice McGillis stated:

It is patently clear and obvious that the deportation of the applicants to the United States is a useless and counterproductive exercise that will result in the applicants filing a further futile claim for refugee status. Rather than engaging in this charade of deporting the applicants to the United States for a second time and implicitly condoning the making of revolving door refugee claims, the Department should simply make decisions on the outstanding applications for family class sponsorship and for permanent residence. In making its decisions on those applications, the Department will be required to determine whether the female applicant's marriage to a Canadian citizen is legitimate, or whether it was entered into for the purpose of circumventing our immigration laws. In the event that the Department determines the marriage to be legitimate, the applicants would likely be permitted to remain in Canada as members of the family class. However, in the event that the Department refuses the applications for sponsorship and for permanent residence on the basis that the marriage was entered into for the purpose of circumventing our immigration laws, the applicants should be deported to their country of origin, namely Kazakhstan, at the appropriate time, in order to avoid further expense to the Canadian taxpayer. The revolving door approach to refugee claims casts a dark shadow over our immigration system, places an unnecessary burden on Canadian taxpayers, delays the hearing of meritorious refugee claims and constitutes a scandalous abuse of our border. [emphasis added]

The situation as set out by McGillis J. is analogous to the situation of the applicants in the case at bar. Further, there is the issue of the applicants' status in Estonia. Documentary evidence shown by the applicants indicate that the male and minor applicants' status in Estonia is such that they may not be allowed back into that country. While the respondent has pointed out correctly that the family is in fact facing deportation to the US, and not Estonia, this invites furtherance of the "revolving door approach" criticized by McGillis J. I am in agreement with McGillis J.'s recommendation in the Jmakina case that Canada would be better served to deport applicants to their country of origin,

which in the present matter is Estonia, rather than remove the applicants to the US with a real possibility that they will re-present themselves as refugee claimants in 90 days.

SERIOUS ISSUE WITH A REAL POSSIBILITY OF SUCCESS

(A) Special considerations

[10]       I am satisfied that the applicants have raised a serious issue with a real possibility of success, as per Pelletier J. in Wang, supra at paragraphs 10-11:

[...] to succeed in the underlying judicial review, the applicant will have to show that the decision not to defer was subject to review for error of law, jurisdictional error, factual error made capriciously, or denial of natural justice: Federal Court Act, R.S.C., 1985, c. F-7, subsection 18.1(4) [as enacted by S.C. 1990, c. 8, s. 5].

[...] I am therefore of the view that where a motion for a stay is made from a removal officer's refusal to defer removal, the judge hearing the motion ought not simply apply the "serious issue" test, but should go further and closely examine the merits of the underlying application.

[...] It is not that the tri-partite test does not apply. It is that the test of serious issue becomes the likelihood of success on the underlying application since granting the relief sought in the interlocutory application will give the applicant the relief sought in the application for judicial review.

The jurisprudence establishes that although a pending H & C application is not a ground in itself for obtaining a stay of a removal order, there can be "special considerations" when a stay will be granted. I am satisfied that "special considerations" exist in this case, and taken cumulatively, clearly warrant deferral, such that the immigration enforcement officer failed to exercise her jurisdiction to defer, or erred in law by fettering her discretion to defer.

(B) H & C Application - No Status in Estonia

[11]       There is a reasonable possibility that the H & C application may be allowed for the reasons that the applicants can demonstrate special hardship will result if they were forced to leave Canada

while their application for landing is processed. The applicants have no legal status in the U.S. Two of the three applicants (the step-father and daughter) have no legal status in Estonia.

(C) Notice to make travel arrangements back to Estonia

[12]       The applicants are on notice that they will be removed from Canada in the near future if the H & C application is dismissed or still pending, so that they must make arrangements to legalize their status in order to travel back to Estonia before that removal takes place. For this reason, it is reasonably practicable to defer the execution of the removal order until June 30^th, 2002 which will provide the applicants with sufficient time to organize their affairs, their legal status and travel to Estonia.

IRREPARABLE HARM

[13]       The issue of irreparable harm in a stay application is that the applicants must establish that they would likely suffer irreparable harm if the stay is not granted. In Melo v. Canada (MCI), [2000] F.C.J. No. 403, (F.C.T.D.) Pelletier J. explained that "irreparable harm" refers to much more than the hurtful effects which normally can be expected as a result of deportation. Mr. Justice Pelletier held at paragraph 21:

"These are all unpleasant and distasteful consequences of deportation. But 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."

[14]       Counsel for the applicants argued that removing the daughter from her Grade 2 class in the middle of her school year constitutes irreparable harm. When taken as one of the cumulative circumstances in the case, removing the daughter from school in the middle of her school year is a relevant consideration in establishing irreparable harm, especially when a stay until June 30, 2002 will avoid the negative effects of being deported to the U.S. before the applicants can legalize their status for a return to Estonia.

BALANCE OF CONVENIENCE

[15]       I am satisfied that there is no inconvenience to the Minister resulting from the applicants' removal being deferred by four months. If there was an inconvenience, it is outweighed by the inconvenience to the applicants upon removal to the U.S.

[16]       For these reasons, this application for a stay of the execution of the removal order is allowed, and it is hereby ordered that there be an interim stay of the execution of the removal order until June 30, 2002.

                                                                                                                     "Michael A. Kelen"    ___________________________

             Judge

OTTAWA, ONTARIO

February 21, 2002