Docket: IMM-134-12
Citation: 2012 FC 100
[UNREVISED
CERTIFIED ENGLISH TRANSLATION]
Ottawa,
Ontario, on January 25, 2012
PRESENT:
The Honourable Mr. Justice Scott
BETWEEN:
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LÉON MUGESERA
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Respondents
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REASONS FOR ORDER
AND ORDER
[1] The applicant’s motion, filed on January 23, 2012, under sections
44 and 50 of the Federal Courts Act, RSC, 1985, c F-7, and under rules 368
and 373 of the Federal Courts Rules, SOR/98‑106, is for
(a) an
interlocutory injunction directing the respondents not to enforce the removal
order issued against the applicant pending the review and final decision on the
application to reopen the delegate’s decision, submitted by the applicant to
the delegate on January 19, 2012, considering said application and the
supporting exhibits reproduced in the applicant’s docket number IMM-9680-11,
dated January 21, 2012, and the new evidence (filed in this docket);
(b) an
order for a stay of the removal order issued against the applicant pending a final
decision on the application for leave and judicial review in docket number IMM-9680-11,
considering the issues raised in docket IMM-9680-11, dated January 21, 2012, and
the new evidence (filed in this docket); and
(c) an
order for a stay of the removal order issued against the applicant pending a
final decision on the application for leave and judicial review in docket
number IMM-134-12, considering the Court’s docket and the new evidence (filed
in this docket).
[2] Counsel for
the applicant argues that
(a) the
legislative provision on which the decision of the Minister’s delegate is based
is invalid, unconstitutional
and of no force or effect pursuant to section 7 of the Canadian Charter
of Rights and Freedoms, Part 1 of the Constitution
Act,1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11
[Charter], and the international obligations ratified by Canada and the
impugned decision;
(b) the
decision of the Minister’s delegate, made under paragraph 115(2)(b) of
the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA],
violates the obligation of non-refoulement imposed by article 33(2) of the Convention
relating to the Status of Refugees [Convention] and other principles of fundamental
justice and, in so doing, violates section 7 of the Charter, the obligations to
which Canada has committed itself and the legitimate expectation that such
obligations will be respected;
(c) the
IRPA and the decision of the Minister’s delegate also contravene the
obligations imposed by the Convention Against Torture and the International
Covenant on Civil and Political Rights [Covenant] by virtue of the
obligation of non-refoulement;
(d) the
IRPA must be interpreted in accordance with the Convention and creates a legal obligation
and duty to act fairly;
(e) with
respect to the principles of fundamental justice and procedural safeguards, the
IRPA and the decision of the Minister’s delegate do not meet the requirements of
a fair and impartial hearing before an independent tribunal for the
determination of his rights, the right to be presumed innocent, the right to a
fair trial and the due process of the IRPA guaranteed by section 7 of the Charter,
section 2(e) of the Canadian Bill of Rights, SC 1960, c. 44,
and article 14 of the Covenant;
(f) with
respect to the process undertaken in the case at bar, the decision of the
Minister’s delegate was the result of misconduct on the part of the respondents
that led to unreasonable findings, considering that the respondents wanted to
deliver the applicant to an organization they characterized and that has been
characterized by the IRB as “an organization with limited, brutal purposes” in
pursuit of objectives contrary to the objectives and values of the United Nations;
(g) in
so doing, the respondents concealed and breached their duty of impartiality and
of disclosure of relevant information that demonstrated the nature of the Rwandan
government, led by the Rwandan Patriotic Front [RPF], characterized as “an
organization with limited, brutal purposes” by the IRB, following the legal position
taken by the Canadian government; the risk for the applicant as an opponent of
the organization; the absence of the rule of law in Rwanda, the persecution of
judges and the absence of judicial independence;
(h) the
decision of the Minister’s delegate is also based on an error in law with
respect to the assessment of risk, a serious breach of fairness by a lack of
reasons regarding the risk of persecution under section 96 of the IRPA and tainted
by ignorance of evidence establishing a risk of persecution; and
(i) errors
of law in determining the risk of mistreatment and torture, burden, the role
and reliability of diplomatic assurance were committed by the delegate, who
also erred by ignoring relevant evidence regarding the position occupied by the
applicant, and humanitarian and compassionate grounds.
[3] In short, the
applicant’s arguments involve the constitutional validity of paragraph 115(2)(b)
of the IRPA, the violation of the obligation of non-refoulement under article 33(2)
of the Convention and the principles of fundamental justice guaranteed by section
7 of the Charter. The applicant also submits that the Minister’s delegate breached
his duty of procedural fairness in addressing evidence put forward by the
applicant and by failing to bring to his attention a decision of the IRB, characterizing
the RPF government as “an organization with limited, brutal purposes.”
[4] Counsel for
the respondents submit that the motion should be dismissed, as
(a) it
does not meet the three criteria in Toth v Canada (Minister of Employment
and Immigration), (1988), 86 NR 302 (FCA) [Toth];
(b) Dadar
v Canada (Minister of Citizenship and Immigration), 2006 FC 382 and Sogi
v Canada (Minister of Citizenship and Immigration), 2006 FC 799, provide, inter
alia, that a motion for a stay of deportation is
not a forum in which to challenge a decision that has already been the subject
of an unsuccessful judicial review application; and
(c) that
the documents and affidavits filed in support of the motion to stay and for an injunction
do not support the finding that there is a serious issue in that the Minister’s
delegate breached the rules of procedural fairness or committed errors of law
in his assessment of the evidence presented.
[5] Any motion to
stay is assessed in accordance with the three criteria in Toth, which
the applicant did not meet in this case, for the reasons that follow.
[6] As to the
first criteria regarding a serious issue, the applicant did not provide
any new evidence which would allow the Court conclude that a serious issue on
the constitutional validity of paragraph 115(2)(b) or on the violation of
section 7 of the Charter was not addressed by Justice Shore in his decision of
January 11, 2012. On this point, Justice Shore wrote, at paragraphs 79 and 80 of
his decision, that
[79] The factual basis cannot be
reassessed. The judgment of the Supreme Court of Canada cannot be overturned
directly or indirectly by reconsidering the validity of section 115 of the IRPA
as the applicant would like. At this final stage, it is also important to note
that the judicial review of the decision of the Minister’s delegate sought by the
applicant also cannot address the legitimacy of the removal order again without
contradicting the disposition of the Supreme Court of Canada in Mugesera,
which reads:
179 Based on Mr. Duquette's
findings of fact, each element of the offence in s. 7(3.76) of the Criminal Code has been made out. We are therefore of the
opinion that reasonable grounds exist to believe that Mr. Mugesera committed
a crime against humanity and is therefore inadmissible to Canada by virtue of
ss. 27(1)(g) and 19(1)(j)
of the Immigration Act.
[80] According to this reasoning
of the Supreme Court of Canada, if Léon Mugesera were to remain in Canada following
the assurances received from Rwanda, this Court would be completely contradicting
the decision of the Supreme Court. (See also paragraphs 44 to 48 of Justice Shore’s
decision dated January 11, 2012, on the application of section 7 of the Charter.)
[Emphasis added.]
[7] Finally, as to the applicant’s argument based on
article 33(2) of the Convention, Justice Shore dealt with it at paragraph
35 of his decision and the applicant has not provided any new evidence that was
not already considered in that same decision.
[8] The
applicant further submits that the Minister’s delegate breached his duty of
procedural fairness in that he, inter alia, failed to inform the
applicant of Rwiyamirira v Canada (Minister of Citizenship and Immigration),
[2004] RPDD No 286 [Rwiyamirira], demonstrating the nature of the Rwandan
government, led by the RPF, characterized as “an organization with limited,
brutal purposes” by the IRB, following the legal position taken by the Canadian
government and the potential risk for the applicant as an opponent of the government
in power. According to him, such a failure meets the criterion that his motion
raises a serious issue.
[9] The Court notes
that the decision in question is a decision by the IRB dated July 7, 2004,
involving events that occurred in the early 1990s. The Court is not satisfied, after
analyzing the record, the decision in question and the decision of the
Minister’s delegate, that the Minister’s delegate breached the duty of fairness
because his analysis had to be concerned with the situation in Rwanda at the
time of execution of the removal order, which is what he did in this case (see Hasan
v Canada (Minister of Citizenship and Immigration), 2008 FC 1069, [2008]
FCJ No1342 at para 23). Nor does the Court accept the applicant’s argument
that the Minister’s delegate ignored evidence. Accordingly, the Court dismisses
the applicant’s claim that the failure to raise Rwiyamirira constitutes a
breach of the rules of procedural fairness and concludes that there is no
serious issue to be tried.
[10] As to the
second criterion in the test, the applicant has not demonstrated to us that he
would suffer irreparable harm if he were to be returned to Rwanda. He did not
provide any new evidence that would allow us to conclude that Justice Shore’s analysis
of the decision of the Minister’s delegate regarding the risks of torture and fear
for his life deserves to be reviewed (see paragraphs 58 to 70 of Justice Shore’s
decision dated January 11, 2012).
[11] As to the
third criterion in the test, balance of convenience, the Court would like
to point out that under the subsection 48(2) of the IRPA, a removal order must be enforced
as soon as is reasonably practicable. Seeing as the applicant did not meet the
serious issue and irreparable harm tests, the balance of convenience therefore
weighs in favour of the respondents.
[12] Thus, the Court is
not satisfied that the applicant meets the criteria in Toth as he did not
submit any new evidence as to the unconstitutionality of paragraph 115(2)(b),
the violation of the obligation of non-refoulement and the principles of
fundamental justice that have not already been dealt with by Justice Shore’s decision
of January 11, 2012. As to the issue of procedural fairness, the Court finds
that the Minister’s delegate acted fairly because he had to carry out a prospective
analysis of the potential risks for the applicant, while taking into account
the evolution of the situation in Rwanda, which is what he did in this case.
ORDER
THE COURT dismisses, therefore,
the motion for
1. an interlocutory injunction
directing the respondents not to enforce the removal order issued against the
applicant pending the review and final decision on the application to reopen
the delegate’s decision, submitted by the applicant to the delegate on January
19, 2012, considering said application and the supporting exhibits reproduced
in the applicant’s docket number IMM-9680-11, dated January 21, 2012, and the
new evidence (filed in this docket);
2. an order for a stay of the removal
order issued against the applicant pending a final decision on the application
for leave and judicial review in docket number IMM-9680-11, considering the issues
raised in docket IMM-9680-11, dated January 21, 2012, and the new evidence
(filed in this docket); and
3. an order for a stay of the removal
order issued against the applicant pending a final decision on the application
for leave and judicial review in docket number IMM-134-12, considering the
Court’s docket and the new evidence (filed in this docket).
“André
F.J. Scott”
Certified
true translation
Daniela
Possamai, Translator
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