Date: 20100505
Docket: IMM-2226-10
Citation: 2010
FC 494
Montréal, Quebec,
May 5, 2010
PRESENT: The Honourable Mr. Justice Mainville
BETWEEN:
SALVATOR PONCE MORENO
MARIA CONCEPCION ORTIZ VALDEZ
Applicants
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
UPON MOTION pursuant to
section 18.2 of the Federal Courts Act, R.S.C. 1985, c. F-7 submitted
by the Applicants for a stay of the enforcement of their removal scheduled for
May 8, 2010 until such time as their application for leave and for judicial
review has been finally decided regarding a decision of immigration officer
Jean Bellavance dated April 15, 2010 rejecting their request for a deferral of
removal;
UPON careful
review and consideration of the evidence and submissions contained in the
Applicants’ motion record and in the Respondent’s motion record;
UPON holding an
oral hearing on this Motion with counsel for all parties present at a special
session of the Court held in Montreal on May 4, 2010;
UPON
consideration of the tripartite test applicable to this Motion as articulated
by the Supreme Court of Canada in Manitoba (A.G.) v. Metropolitan Stores
Ltd., [1987] 1 S.C.R. 110 and RJR-MacDonald Inc. v. Canada (Attorney
General), [1994] 1 S.C.R. 311, and applied to stays of removals by the
Federal Court of Appeal in Toth v. Canada (Minister of Employment and
Immigration) (1988), 86 N.R. 302;
THE COURT
ORDERS that this motion for a stay of removal is dismissed for the
following reasons:
Background
[1]
The
Applicants are citizens of Mexico, born respectively in 1947 and 1949, who
entered Canada on December
12, 2006. They were refused status as refugees or persons in need of protection
pursuant to a decision dated May 9, 2008 of a panel of the Refugee Protection
Division of the Immigration and Refugee Board of Canada. The panel recognized
that the Applicants were the subject of threats from unidentified criminals;
however, it found that the Applicants had an available internal flight
alternative in Mexico.
[2]
That
decision of the panel was confirmed on judicial review by a decision dated
February 5, 2009 of Justice de Montigny.
[3]
Following
their unsuccessful judicial review application, the Applicants applied for a
pre-removal risk assessment. In the course of that assessment, the Applicants
submitted new evidence in the form of new alleged threats which their son had
received in Mexico, including
allegations related to a suspicious accident involving a family relation.
[4]
The
pre-removal risk assessment was completed on February 23, 2010. The Applicants’
allegations were not deemed to invalidate the finding of the Refugee Protection
Division panel concerning the availability of an internal flight alternative,
since the son had returned to the community where the threats had originated
rather than seeking refuge elsewhere in Mexico. Moreover,
the allegations concerning the suspicious accident involving a family member
were deemed to be nothing more than speculation. This pre-removal risk
assessment decision has not been challenged on judicial review.
[5]
While
their pre-removal risk assessment was still pending, the Applicants also
submitted an application for permanent residence from within Canada on
humanitarian and compassionate considerations dated July 27, 2009 (the “H&C
application”), pursuant to subsection 25(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the “IRPA”). This H&C application
raised various issues concerning the best interest of the Applicants’
grandchildren living in Canada, the Applicants’ establishment in Canada,
the hardship they would face if they had to apply from outside Canada, principles
of family reunification, and finally their personalized risk of return as set
out in their pre-removal risk assessment. This H&C application has yet to
be decided upon by the Canadian immigration authorities.
[6]
Following
the negative pre-removal risk assessment decision of February 23, 2010, the
Applicants were informed on March 27, 2010 that the latest day for their
departure from Canada was May 8, 2010.
[7]
On
April 7, 2010 the Applicants, through their legal counsel, requested a deferral
of removal until their H&C application is assessed. One of the factors
raised in this deferral request concerned the risk faced by the Applicants
should they return to Mexico, which risk was further elaborated in
additional submissions for deferral submitted by the Applicants on April 13,
2010. These were the same risk factors and related facts as those submitted
within the context of the pre-removal risk assessment.
[8]
The
enforcement officer issued a decision dated April 15, 2010 finding that there
were insufficient motives to defer the removal, taking into account the
Applicants’ submissions and the best interest of the concerned children. Hence
the application for leave and for judicial review challenging this decision and
submitted April 21, 2010.
Positions of the parties
[9]
In
this motion for a stay of removal, the Applicants argue that a serious issue is
raised as to whether the enforcement officer erred in law in refusing to defer
removal pending an assessment of the best interests of the grandchildren within
the context of the pending H&C application.
[10]
The
Applicants further assert that they face irreparable harm should they be
removed since their family has been targeted by criminals in Mexico, and also
with regard to the best interest of their grandchildren. The Applicants add
that the balance of convenience follows the irreparable harm they will suffer.
[11]
The
Respondent argues that, in this case, an elevated standard applies for a
serious issue. The enforcement officer considered the evidence submitted as
well as the best interests of the grandchildren and came to a conclusion that
fits within a range of possible and acceptable outcomes defensible in fact and
law.
[12]
The
Respondent adds that irreparable harm has not been made out since the risk
raised by the Applicants is the same as that which was reviewed in the
unchallenged pre-removal risk assessment. Moreover, no irreparable harm to the
grandchildren has been established by the Applicants. Finally, the balance of
convenience favours the Respondent, who has a statutory duty under subsection
48(2) of the IRPA to enforce a removal order as soon as reasonably practicable.
Analysis
[13]
This
motion can be decided within the principles recently set out by the Federal
Court of Appeal in Baron v. Canada (Minister of Public
Safety and Emergency Preparedness), 2009 FCA 81, 309 D.LR. (4th)
411; [2009] F.C.J. No. 314 (QL) (“Baron”) referring approvingly to the
decision of Justice Pelletier in Wang v. Canada, 2001 FCT 148; [2001] 3
F.C. 682; [2001] F.C.J. No. 295 (QL) (“Wang”) and to the decision of
Justice Nadon in Simoes v. Canada (Minister of Citizenship and Immigration)
(2000), 187 F.T.R. 219; [2000] F.C.J. No. 936 (QL) (“Simoes”).
[14]
Baron instructs,
at paragraphs 66 and 67, that the judge hearing a motion to stay a removal
within the context of an application for leave and for judicial review of a
decision of an enforcement officer refusing to defer a removal should clearly
have in mind, first, that the discretion to defer the removal of a person
subject to an enforceable removal order is limited, and second, that the
standard of review of an enforcement officer’s decision is that of reasonableness.
Furthermore, since the motion to stay essentially seeks a final decision on the
refusal to defer, the applicant must put forward quite a strong case to justify
a stay. Consequently, the motion judge should closely examine the merits of the
underlying application.
[15]
The
Baron decision itself refers to the Wang decision. In Wang,
Justice Pelletier stated the following at paragraphs 48 and 52 [emphasis
added]:
It has been recognized that there is a discretion to defer removal
though the boundaries of that discretion have not been defined. The grant of
discretion is found in the same section which imposes the obligation to execute
removal orders, a juxtaposition which is not insignificant. At its widest, the
discretion to defer should logically be exercised only in circumstances where
the process to which deferral is accorded could result in the removal order
becoming unenforceable or ineffective. Deferral for the mere sake of delay is
not in accordance with the imperatives of the Act. One instance of a policy
which respects the discretion to defer while limiting its application to cases
which are consistent with the policy of the Act, is that deferral should be
reserved for those applications or processes where the failure to defer will
expose the applicant to the risk of death, extreme sanction or inhumane
treatment in circumstances and where deferral might result in the order
becoming inoperative. The consequences of removal in those circumstances
cannot be made good by re-admitting the person to the country following the
successful conclusion of their pending application. Family hardship cases such
as this one are unfortunate but they can be remedied by readmission.
[…]
Turning to the issue in the underlying judicial review, the
Removal Officer's refusal to defer the removal pending the disposition of the
H&C application, I find no serious issue with regard to the Removal
Officer's conduct. As set out above, a pending H&C application on grounds
of family separation is not itself grounds for delaying a removal. To treat it
as such would be to create a statutory stay which Parliament declined to enact.
[…]
[16]
This
approach was approved by the Federal Court of Appeal in Baron at
paragraph 51 [emphasis in original]:
Subsequent to my decision in Simoes, supra,
my colleague Pelletier J.A., then a member of the Federal Court Trial Division,
had occasion in Wang v. Canada (M.C.I.), [2001] 3 F.C. 682 (F.C.), in
the context of a motion to stay the execution of a removal order, to address
the issue of an enforcement officer's discretion to defer a removal. After a
careful and thorough review of the relevant statutory provisions and
jurisprudence pertaining thereto, Mr. Justice Pelletier circumscribed the
boundaries of an enforcement officer's discretion to defer. In Reasons which I
find myself unable to improve, he made the following points:
- There are a range of factors that can
validly influence the timing of removal on even the narrowest reading of
section 48, such as those factors related to making effective travel
arrangements and other factors affected by those arrangements, such as
children's school years and pending births or deaths.
- The Minister is bound by law to
execute a valid removal order and, consequently, any deferral policy should
reflect this imperative of the Act. In considering the duty to comply with
section 48, the availability of an alternate remedy, such as a right to return,
should be given great consideration because it is a remedy other than failing
to comply with a positive statutory obligation. In instances where applicants
are successful in their H&C applications, they can be made whole by
readmission.
- In order to respect the policy of
the Act which imposes a positive obligation on the Minister, while allowing for
some discretion with respect to the timing of a removal, deferral should be
reserved for those applications where failure to defer will expose the
applicant to the risk of death, extreme sanction or inhumane treatment. With
respect to H&C applications, absent special considerations, such
applications will not justify deferral unless based upon a threat to personal
safety.
- Cases where the only harm suffered by
the applicant will be family hardship can be remedied by readmitting the person
to the country following the successful conclusion of the pending application.
I agree
entirely with Mr. Justice Pelletier's statement of the law.
[17]
Consequently,
where the deferral of removal is sought on the grounds of a pending application
based on humanitarian and compassionate considerations pursuant to subsection
25(1) of IRPA, absent special considerations, the deferral should only be
considered where the a threat to personal safety has been established.
[18]
In
this case, the personal safety of the Applicants is not at issue. The Refugee
Protection Division of the Immigration and Refugee Board of Canada and the
officer who carried out the pre-removal risk assessment both found that the
Applicants had an internal flight alternative available to them within Mexico. The Refugee
Protection Division decision was confirmed by the Federal Court, and the
pre-removal risk assessment has not been challenged. Absent new evidence to the
contrary, the enforcement officer did not have the authority to ignore or to
overturn these decisions.
[19]
Consequently,
the only issue here is whether the pending H&C application is in and of
itself a sufficient reason to defer the removal. In other words, does a pending
H&C application constitute one of the special considerations referred to in
Wang and Baron which could allow the enforcement officer to defer
the removal of the Applicants? I am of the opinion that the enforcement officer
did not act unreasonably in finding that the particular facts of this case did
not constitute such special considerations.
[20]
As
noted by Justice Nadon in Baron at paragraph 50, the mere existence of
an H&C application does not constitute a bar to the execution of a valid
removal order. Moreover, with respect to the presence of Canadian-born
children, an enforcement officer is not required to undertake a substantive
review of the children’s best interests before executing a removal order. In so
finding, Justice Nadon was reiterating his comments in Simoes at
paragraphs 12 to 14:
In my opinion, the discretion that a removal officer may exercise
is very limited, and in any case, is restricted to when a removal order will be
executed. In deciding when it is "reasonably practicable" for a
removal order to be executed, a removal officer may consider various factors
such as illness, other impediments to travelling, and pending H&C
applications that were brought on a timely basis but have yet to be resolved
due to backlogs in the system. […]
With
respect to pending H&C applications, certainly, the mere existence of such
an application cannot bar the execution of a valid removal order. "To hold
otherwise," as Noël J. aptly observed, "would, in effect, allow
claimants to automatically and unilaterally stay the execution of validly
issued removal orders at their will and leisure by the filing of the appropriate
application. This result is obviously not one which Parliament intended."
Regarding H&C applications involving Canadian children, I
cannot subscribe to the view submitted by the Applicant -- namely, that the
removal officer must defer removal of a parent with Canadian children pending
the determination of their H&C application […]
[21]
Simoes
does
set out that a removal officer may consider a pending H&C application that
was brought on a timely basis but has yet to be resolved due to backlogs in the
system. Justice Zinn has noted in the recent decision of Williams v. Canada
(Minister of Public Safety and Emergency Preparedness), 2010 FC 274, [2010]
F.C.J. No. 318 (QL) at paragraph 36 that there appears to be no analysis or
discussion of the rationale for this proposition; however, Justice Zinn notes
that the rational may be that the Minister should not be allowed to rigorously
enforce his duty of removal when he has been delinquent in his duty to process
applications that may make the removal unnecessary or invalid.
[22]
Perhaps
an enforcement officer may defer the removal if the decision on the H&C
application is imminent, thus possibly avoiding multiple displacements for the
applicants should their H&C application be accepted; and perhaps the length
of time for which an H&C application has been pending may be a factor in
determining if a decision on the application is impeding; however the simple
fact that an H&C application has been pending for a long rather than a
short time does not appear at first glance to justify a deferral absent special
circumstances: see the comments of Justice Blais in Baron at para. 80.
Moreover, it is questionable, in light of Baron, if a pending
H&C application, even if processed for a long time, is in and of itself
sufficient to justify a deferral of removal without some risk to the
applicant’s personal safety being demonstrated. However, I need not decide
these issues in this case since it is clear here that the review of the H&C
application by the Minister is not untimely nor is there any indication that a
decision on the H&C application is imminent. In such circumstances I do not
believe the enforcement officer acted unreasonably in refusing to defer the
removal of the Applicants.
[23]
It
is useful to keep in mind that an application pursuant to subsection 25(1) of
the IRPA seeks to obtain an exemption from a legal requirement of that act, and
a decision to grant or not to grant such an application is a discretionary
exercise of ministerial authority. Though the exercise of that discretion is
subject to judicial review, the simple fact that such an application has been
submitted does not, by and in itself, grant a right to remain in Canada. The
Applicants have been found not to be Convention refugees or persons in need of
protection by both the panel of the Refugee Protection Division and by the
officer responsible for the pre-removal risk assessment. They consequently no
longer have a right to remain in Canada, and the simple fact of
having submitted an H&C application does not grant them that right. Absent
special circumstances or a risk to their personal safety being demonstrated, it
was within the removal officer’s authority not to grant them a deferral of
removal on the basis that their H&C application was pending.
[24]
The
argument of the Applicants based on irremediable harm should they be removed is
fully dealt with by the decisions of the Refugee Protection Division panel and
of the pre-removal risk assessment officer, who all found that the Applicants
may avail themselves of an internal flight alternative in Mexico. Moreover, no
evidence of irremediable harm on the Applicants’ grandchildren has been
submitted.
[25]
In
such circumstances, the balance of convenience also favours the Respondent.
[26]
The
motion for a stay of removal is therefore dismissed.
“Robert
M. Mainville”
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