Date: 20100407
Docket: IMM-1396-10
Citation: 2010 FC 367
BETWEEN:
ZEF SHPATI
Applicant
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR
ORDER
HARRINGTON J.
[1]
On
17 March 2010, I heard three motions on behalf of Mr. Shpati to stay his
removal to Albania scheduled
for 22 March 2010, until his applications for leave and for judicial review of three
negative administrative decisions are dealt with by this Court. The first was a
negative pre-removal risk assessment (court docket no. IMM-6518-09); the second
the rejection of his request to apply for permanent residency from within Canada on
humanitarian and compassionate grounds (court docket no. IMM-6522-09); and the
third was the refusal of an enforcement officer, under section 48 of the Immigration
and Refugee Protection Act (IRPA), to defer his removal until after the
outcome of the first two applications (court docket no. IMM-1396-10). After
taking the matter under advisement, I granted a stay on 19 March 2010 in this
matter, i.e. the decision of the enforcement officer not to defer
removal. I dismissed the other two motions on the grounds of mootness.
[2]
In
my Order granting the stay, I stated that reasons would follow.
THE FACTS
[3]
Mr.
Shpati submits that he would be at risk of persecution, torture, risk to life
or risk of cruel and unusual treatment or punishment should he be returned to Albania. So far, he
has unable to persuade any Canadian decision-maker to his way of thinking.
[4]
His
claim for refugee status was denied by the Refugee Protection Division of the
Immigration and Refugee Board. This Court granted him leave to apply for
judicial review, which was later dismissed on the merits by Madam Justice
Snider.
[5]
Mr.
Shpati was born and spent the first 25 years of his life in a labour camp in Albania. In 1991, he
was recognized as a “person of concern” by the United Nations High Commissioner
for Refugees, and was granted permanent resident status in the United
States.
However, he was subsequently deported to Albania in 2005 for
illegal use of his wife’s green card. He immediately left Albania and came to Canada to make a
refugee claim. The RPD invoked section 108 of IRPA and rejected his claim on
the basis that the reasons for which he sought protection had ceased to exist.
The judicial review of that decision was dismissed as Madam Justice Snider found
that that decision was not patently unreasonable. Her decision, reported at
2007 FC 237, was issued before Dunsmuir v. New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, abolished the patent
unreasonableness standard in judicial review.
[6]
Thereafter,
both his subsequent pre-removal risk assessment and his application to remain
in Canada on
humanitarian and compassionate grounds were also unsuccessful, but they are
still alive in the sense that applications for leave to have the decisions
judicially reviewed by this Court are pending.
THE ENFORCEMENT
OFFICER’S DECISION
[7]
The
enforcement officer decided on 8 March 2010 not to defer the execution of the
removal order. He wrote as follows:
The Canada Border Services Agency (CBSA)
has an obligation under section 48 of the Immigration and Refugee Protection
Act to carry out removal orders as soon as reasonably practicable. Having
considered all available information, I am not satisfied that a deferral of the
execution of the removal order is appropriate in the circumstances of this
case.
[8]
The
officer’s notes to file comprise four pages. It is well-established that such
notes constitute the reasons for a decision (Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, 1 Imm. L.R. (3d) 1
at para. 44).
[9]
The
officer accurately noted that the request was on the basis of the pending
litigation before this Court, his risk upon returning to Albania, his
establishment in Canada, as well as the best interests of his wife and
children.
[10]
With
respect to the two outstanding applications for leave and for judicial review
he noted, quite correctly, that the mere filing of those applications does not
preclude the Minister’s officials from enforcing IRPA, including the execution
of removal orders. He added:
I note that the enforcement of Mr. Shpati’s
removal order does not negate him the right to have PRRA/H&C reassessed, if
judicial review is granted by the Federal Court.
[11]
He
concluded that a deferral on the basis of the pending applications for leave
and for judicial review was not warranted. As to the risk to Mr. Shpati on
returning to Albania, he noted that the Refugee Protection Division had found
him not to be a Convention refugee or a person in need of protection, and also
that the PRRA officer had concluded that there were mechanisms in place in
Albania to provide him with adequate, although not necessarily perfect,
protection. On this point he concluded: “I am not satisfied that any new or
significant personalized risk exists.” It is not clear whether the officer was
referring to risks subsequent to the rejection of Mr. Shpati’s refugee claim,
or subsequent to his negative PRRA decision.
[12]
He
added:
I note that both the PRRA and H&C
applications were made to, and decided by, competent bodies that have reviewed
the evidence brought forth and have already made a determination with regards
to risk and undue hardship.
[13]
Finally
he considered the best interests of Mr. Shpati’s wife and children, who,
through rather unusual circumstances, are currently in the United
States.
He was of the view that insufficient evidence had been submitted to justify a
deferral on those grounds.
STAYS IN IMMIGRATION
MATTERS
[14]
The
process undergone by Mr. Shpati is fairly typical of that undergone by refugee
claimants who are not suspected of being inadmissible due to serious
criminality or other grounds. It begins with an assertion by a person that he
or she is a refugee within the meaning of the United Nations Convention or is
otherwise in need of Canada’s protection, as contemplated by sections
96 and 97 of IRPA. On arrival in Canada, a removal order is
issued but stayed by operation of law until the claim is dealt with. If the
decision by the RPD is not favourable, the person has the right to apply to
this Court for leave and for judicial review. If successful, the application is
referred back to the RPD for a fresh determination by another decision maker.
If unsuccessful, the person has the opportunity to apply for a PRRA.
[15]
Sections
112 and following of IRPA provide that a person such as Mr. Shpati, even if he
had not made a refugee claim in the first place, is entitled to apply to the
Minister for protection. In the case of a failed refugee claimant, the issue is
whether there are new risks. Until a negative decision is rendered on the PRRA,
section 232 of the Immigration and Refugee Protection Regulations provides that
the applicant cannot be removed from Canada. However, once a
negative PRRA assessment has issued, a removal order is enforceable. Section 48
of IRPA provides: “The foreign national against whom it was made must leave Canada immediately and
it must be enforced as is reasonably practicable.” The removal order is
enforceable even if the applicant makes a fresh application for a PRRA.
[16]
An
H&C application never in and of itself has the effect of staying a removal
order.
[17]
However,
this Court in the exercise of its equitable jurisdiction may, in its discretion,
stay a removal order. Such a stay has as its purpose the maintenance of the status
quo ante pending the resolution of an application currently before the
Court.
[18]
The
test applied by the Court for an interlocutory stay is the same as that for an
interlocutory injunction. There must be a serious issue in the underlying
proceedings before the Court, the applicant would suffer irreparable harm if
the stay were not granted, and the balance of convenience must not favour the
Minister (Toth
v. Canada (Minister of Employment
and Immigration)
(1988), 86 N.R. 302, 6 Imm. L.R. (2d) 123; RJR -
MacDonald v. Canada (Attorney General), [1994] 1
S.C.R. 311).
[19]
The
general rule, as enunciated in RJR MacDonald, is that an issue is
serious if it is neither frivolous nor vexatious. However, when the granting of
the stay would in effect determine the outcome of the underlying proceedings,
then the issue is not serious unless the Court assesses the likelihood of
success (Wang v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 148, [2001] 3 F.C. 642, 13 Imm.
L.R. (3d) 289).
THE MOTION HEARING
[20]
A
good part of the hearing dealt with the Court’s concern over the implications
of the decision of the Federal Court of Appeal in Perez v. Canada (Minister of
Citizenship and Immigration), 2009 FCA 171, 82 Imm. L.R. (3d) 167, and
the range of discretion afforded an enforcement officer to defer removal. For
all intents and purposes, Wang has been elevated to the status of a
decision of the Federal Court of Appeal, given the ringing endorsement thereof by
Mr. Justice Nadon in Baron v. Canada (Minister of Public Safety and
Emergency Preparedness), 2009 FCA 81, 79 Imm. L.R. (3d) 157. Nevertheless
the stay motions in all three underlying applications were fully argued.
However, I stated that if I granted a stay with respect to the decision of the
enforcement officer I would in all likelihood dismiss the other two motions on
the grounds of mootness, without coming to any conclusion as to the merits
thereof. My reasoning is that the enforcement officer did not refuse to grant a
deferment on the basis that the requests went beyond his narrow range of
discretion under Section 48 of IRPA and that Mr. Shpati should have come
directly to this Court. Rather, he took a look at both the PRRA and H&C
decisions.
[21]
It
was open to Mr. Shpati to have only sought a stay of the enforcement officer’s
decision. Although it was undoubtedly wise for him to seek a stay in all three
court files, particularly since the assessment of the serious issue aspect of
an interim stay may be more elevated when the decision at issue is one of an
enforcement officer not to defer, as opposed to a decision in a PRRA or H&C
matter, the fact remains that having decided to grant a stay in one, I did not
consider it necessary or appropriate to assess the merits of the other two.
[22]
As
the matter was both heard and decided on an urgent basis, I said I would
provide reasons later. However the parties already have an outline of what I am
about to say as a result of my speaking order in Simbolon v. Canada (Minister of
Citizenship and Immigration), court docket IMM-1193-10, issued 18 March
2010.
PEREZ
[23]
In
Perez, the underlying application for leave and for judicial review was with
respect to a negative pre-removal risk assessment, not a decision of an
enforcement officer not to defer removal. While that application for leave was
pending, the authorities decided to enforce the removal order. The resulting
motion for a stay was dismissed and Mr. Perez was returned to Mexico. However,
leave to apply for judicial review was thereafter granted.
[24]
At
the hearing of the judicial review on the merits, Mr. Justice Martineau
dismissed the application on the grounds that the matter was moot as Mr. Perez
was no longer in Canada. Section 112 of IRPA, in Division 3 thereof,
which deals with pre-removal risk assessments, provides that “…a person in Canada … may apply
to the Minister for protection…”
[25]
The
matter went to the Federal Court of Appeal on a certified question. In a
judgment delivered from the Bench, Mr. Justice Noël agreed that the issue was
moot. He said at paras. 5 and 6:
[5] […] a review of a negative
decision of a PRRA officer after the subject
person has been removed from Canada, is without object.
[6] We also cannot detect any
error in Martineau J.'s exercise of discretion in deciding not to hear the
application despite its mootness.
[26]
Thus, a person such as Mr. Shpati, who had the right to come to this
Court to seek leave and, if granted leave, apply for judicial review of a
negative pre-removal risk assessment, loses that right if removed from Canada against his
will.
[27]
There
is currently a fundamental distinction between the enforcement of a removal
order while a PRRA is pending, and when an H&C application is pending.
Notwithstanding that the typical H&C application is for permission to apply
for permanent resident status from within Canada, rather than from one’s own
country, as contemplated by section 11 of the Regulations, it has been held
that the removal does not render that application nugatory (Shchelkanov v.
Canada (Minister of Employment and Immigration) (1994), 76 F.T.R. 151, a
decision of Mr. Justice Strayer, at para. 9; Selliah v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 261, a decision of Mr. Justice
Evans, at para. 20).
[28]
No
mention of this distinction was made in Perez. Perhaps the distinction
lies in the fact that the Minister is empowered by section 25 of IRPA to grant
permanent resident status if justified by H&C considerations, without any
geographical limitation. On the other hand, section 112 of IRPA requires the
applicant in a pre-removal risk assessment to be in Canada.
[29]
Obviously
the enforcement officer was not instructed on the implications of Perez.
If he had, he could not possibly have said that the enforcement of the removal
order did not negate Mr. Shpati’s right to have the PRRA reassessed, if
judicial review were granted. He erred in law.
[30]
However,
it is not enough to find that he erred in law. The Court of Appeal instructs us
that we must also consider whether the reasoning of the decision shows that the
law was actually followed (Okoloubu v. Canada (Minister of
Citizenship and Immigration), 2008 FCA 326, [2009] 3 F.C.R. 294, 75
Imm. L.R. (3d) 1). This brings us to Mr. Justice Pelletier’s decision in Wang
via Baron.
BARON
[31]
Baron was on
appeal to the Federal Court of Appeal on a certified question which was:
Where an
applicant has filed an application for leave and judicial review challenging a
refusal to defer removal pending a decision on an outstanding application for
landing, and a stay of removal is granted so that the person is not removed
from Canada, does the fact that a decision on the underlying application for
landing remains outstanding at the date the Court considers the application for
judicial review maintain a “live controversy” between the parties, or is the
matter rendered moot by the passing of scheduled removal date?
[32]
In
that case, unlike this one, the H&C application under section 25 of IRPA
had not yet been decided. The Court held that the application for judicial
review was not moot as a live controversy still existed. Mr. Justice Nadon fully
endorsed Mr. Justice Pelletier’s reasons in Wang. At paragraphs 66 and
67 he noted that the discretion an enforcement officer has to defer removal is
limited, that the standard of review is reasonableness and that on the serious
issue prong of the tri-partite test in Toth, above. It is not enough
that an issue be neither frivolous nor vexatious, “the Judge should take a hard
look at the issue raised in the underlying application.”
WANG
[33]
The
facts in Wang were also very different from the facts in this case. When
Mr. Wang’s temporary visa expired a year after his arrival here, he made a
refugee claim. That claim was dismissed, as was his subsequent claim for
consideration as a member of the Post-Determination Refugee Claimants in Canada
Class (those entitled to a PRRA under the current Act). No application for
leave and for judicial review was made of either decision. After being arrested
on an immigration warrant arising from his failure to report for a removal
interview, he married and then applied for permanent residence within Canada, with his
wife’s sponsorship. When the enforcement officer refused to defer his removal,
there was no underlying application before this Court. What there was, was a
very recent application to the Minister for permanent residency based on
H&C grounds; those grounds being family unification, not personal risk.
[34]
Mr.
Justice Pelletier did not depart from the tripartite test applicable for
interlocutory injunctions and interlocutory stays, but rather emphasized that
the serious issue aspect “…becomes the likelihood of success on the underlying
application since granting the relief sought in the interlocutory application
would give the applicant the relief sought in the application for judicial
review” (para. 11). Had a stay been granted in that case, the application for
leave and for judicial review would have become pointless. However, in this
case, the relief sought has many stages. In both the PRRA and H&C
applications, leave must first be obtained. If not, that is the end of the
matter. If leave is obtained, then Mr. Shpati may or may not be successful in
his applications for judicial review. It is only if he is successful that he
will be entitled to a new PRRA or H&C review, as the case may be.
[35]
Furthermore,
the stay granted in this case may become moot if leave is not granted in the
H&C or the PRRA applications. Thus, the stay might only be for three months,
rather than the three years or so it takes to process an initial H&C, at
least one in which the applicant resides in the Toronto area.
[36]
Mr.
Justice Pelletier pointed out that there are two aspects to deferrals. One is
to defer in time or to postpone, and the other is to defer to another process.
[37]
Deferrals
in time may be justified if removal under section 48 of IRPA is not “reasonably
practical” such as if there are difficulties in arranging travel arrangements or
the person is currently unfit to travel. There may be other somewhat broader
circumstances to justify a temporary deferral such as a scheduled medical
procedure or the irretrievable loss of a child’s school year.
[38]
In
discussing “deferral” in the sense of granting precedence to or yielding to
another process, he specifically referred to H&C applications and to what
are now known as PRRA applications. If the process is successful, the person
acquires the right to apply for landing, subject to meeting admissibility
requirements.
[39]
Consider
his following words, at para. 41:
In the case of H&C applications, the
person making the application may not face threats to their personal safety
upon their return to their country of origin, whereas, by definition, members
of the PDRCC are subject to a risk to their life, or extreme sanctions or
inhumane treatment.
[40]
There
was no risk element in Mr. Wang’s H&C application. Mr. Shpati not only
claims risk, which is the very essence of a PRRA, but there is also a risk
element in his H&C. Even if the risk did not satisfy the requirements of sections
96 and 97 of IRPA, it might be such that he would face unusual and undeserved
or disproportionate hardship if returned to Albania.
[41]
The
heart of Justice Pelletier’s decision is the following:
[50]
The discretion to be exercised does not consist of assessing the risk. The
discretion to be exercised is whether or not to defer to another process which
may render the removal order ineffective or unenforceable, the object of that
process being to determine whether removal of that person would expose him to a
risk of death or other extreme sanction. If the process has not been initiated
at the time of the request for deferral, or has been initiated as a result of
the removal process, the person exercising the discretion could conclude that
the conduct of the applicant is inconsistent with an allegation of fear of
death or inhumane treatment. This is not a question of assessing the risk but
rather of assessing the bona fides of the application.
[42]
In
this case, unlike Wang, the PRRA process is not over in that an
application for leave and for judicial review had been initiated prior to the
request for deferral. The H&C application was not taken at the last minute,
there was a risk element alleged and, as in the PRRA, the process before this Court
had already been initiated before the enforcement officer was asked to defer
removal.
THE ENFORCEMENT
OFFICER’S ERRORS
[43]
Apart
from failing to realize the implications of Perez, which was an error in
law, the officer failed to assess the bona fides of the H&C and PRRA
applications. Rather he seems to have assessed the risk, something which is
clearly outside the discretion given to him by section 48 of IRPA, as noted by
Mr. Justice Pelletier in paragraph 50 of Wang.
[44]
I
am also disturbed by the officer’s comment quoted earlier that the PRRA and
H&C applications had been decided by competent bodies. They may well be
competent, but may also be wrong. The law which gives those bodies jurisdiction
recognizes that they made have erred in law or in fact. That is precisely why
the Federal Court has superintending power, which Court in turn may be reversed
by the Federal Court of Appeal, which in turn may be reversed by the Supreme
Court of Canada.
[45]
Although
an application for leave and for judicial review of a negative PRRA does not
automatically result in a stay, I find it difficult to accept that Parliament intended
that it was “reasonably practicable,” for an enforcement officer, who is not
trained in these matters, to deprive an applicant of the very recourse
Parliament had given him.
THE TRIPARTITE TEST
[46]
The
serious and irreparable harm aspects are intertwined. The Enforcement Officer
clearly misunderstood the PRRA process and refused to defer to another process,
the application for leave and for judicial review, notwithstanding that the
very basis of a pre-removal risk assessment is the risk of persecution.
Unquestionably the balance of convenience favours Mr. Shpati.
[47]
I
am mindful that words used to resolve a specific issue may possibly be treated
as words of general application and used in other contexts. I have deliberately
refrained from commenting on the situation, as in Perez, where it was a
judge of this Court who refused to grant a stay. Nor do I rule out the
possibility that an enforcement officer may defer removal in circumstances in
which new events have occurred after the negative PPRA decision, such as
natural disasters in the form of tsunamis or earthquakes or political upheavals
such as “coup d’états.”
[48]
Nor
am I saying an enforcement officer must automatically defer to an existing
application for leave and for judicial review of a negative PRRA if satisfied
that the process before this Court was instituted in good faith. In the future,
enforcement officers should be more aware of Perez, and, if I may
venture a suggestion, when it comes to requests to him or her to defer pending
the outcome of proceedings in this Court relating to PRRAs or H&Cs with a
risk element that the request be dismissed on the grounds that the matters in
issue are beyond the officer’s discretion and that the request for a stay
should rather be addressed to this Court.
[49]
A
copy of these reasons shall be placed in court dockets IMM-6518-09 and
IMM-6522-09.
“Sean Harrington”
Ottawa,
Ontario
April
7, 2010
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