Date:
20090121
Docket:
IMM-222-09
Citation:
2009 FC 56
Ottawa,
Ontario, January 21, 2009
PRESENT:
The Honourable Mr. Justice Shore
BETWEEN:
ANTONIO
COLLANTES SALAZAR
Applicant
and
MINISTER OF PUBLIC
SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
I. Preliminary
[1]
On
January 20, 2009, at 9:48 a.m., the applicant served his motion
record on the respondent seeking a stay of removal to the United States
scheduled for January 22, 2009, at 8:00 a.m.
[2]
The
Court could refuse to hear this last‑minute application. A hearing at the
last minute prejudices the respondent because it does not enable him to
adequately prepare.
[3]
The
applicant could have filed his stay motion within the time limits set out in
the Federal Courts Rules, SOR/98-106. Indeed, it appears from paragraph
24 of the applicant’s affidavit that he received the notice to appear for the
removal on January 7, 2009. However, as it appears from paragraph 26 of his
affidavit, he waited until January 16, 2009, before requesting a deferral of
the removal. No satisfactory explanation was given for his delay in at least
filing this stay motion in the Federal Court.
[4]
[7] This
Court has stated on numerous occasions that the hearings on applications to
stay filed at the last minute, except under exceptional circumstances, do not
favour the interests of justice in that they do not enable the respondent in
particular to adequately prepare:
As stated by this Court in numerous occasions, “last
minute” motions for stays force the respondent to respond without adequate
preparation, do not facilitate the work of this Court and are not in the
interest of justice. A stay is an extraordinary procedure which deserves
thorough and thoughtful consideration (Matadeen v. The Minister of Citizenship
and Immigration, June 22, 2000, IMM-3164-00 (FCTD)).
(Melendez v Canada (Minister
of Public Safety and Emergency Preparedness), 2005 FC 1646,
149 A.C.W.S. (3d) 642).
[5]
Similarly,
in Al Asali v. Canada (Minister of Public Safety and Emergency Preparedness),
2006 FC 860, 150 A.C.W.S. (3d) 444, Justice Yves de Montigny found as
follows:
[5] This kind of behaviour
must be discouraged, as it abuses the judicial process and prejudices the
respondent. The granting of a stay is an exceptional remedy, and it can be
denied to those who prefer to wait to the last minute to present their case on
short notice, in the absence of an adequate explanation for their delay
. . .
II. Facts
[6]
In
September 2003, the Revolutionary Armed Forces of Columbia (FARC) asked Juan
Pablo Collantes, the applicant’s son, to collaborate in their activities. He
refused and was beaten. The FARC began monitoring the area around the family
home.
[7]
In
November 2003, his sister Luz Stella was followed by individuals who threatened
to rape her. The applicant also received a telephone call threatening the
entire family.
[8]
Also,
in Peru, the Shining Path has been watching the applicant’s family since 1994 because
his father had refused to give them his land. His brother was killed and one of
his half‑brothers was incarcerated on charges of terrorism.
[9]
Juan Pablo,
the applicant’s son, left Columbia on December 18, 2003, for the United
States; the applicant and his daughter, Luc Stella, joined him on January 8,
2004. Together, they arrived in Canada on January 12, 2004, and claimed
refugee status at the Saint-Bernard-de-Lacolle border crossing.
[10]
On
May 13, 2008, the claimant’s two applications, the application for a pre‑removal
risk assessment (PRRA) and the application for permanent residence based on
humanitarian and compassionate considerations (APR), were denied by the PRRA
officer.
[11]
Justice Richard Mosley
dismissed two applications for leave and judicial review disputing these last
two negative decisions.
[12]
A
letter dated December 1, 2008, was sent to the applicant, summoning him to
attend a pre‑removal interview on January 7, 2009.
[13]
On
January 7, 2009, the applicant met with an enforcement officer.
[14]
At
this interview, the officer set the departure date for January 22, 2009,
at 8:00 a.m., to the United States.
[15]
On
January 16 , 2009, a request to the officer to defer his removal date was
refused.
[16]
On
January 19, 2009, the applicant filed an application for leave and
judicial review (ALJR) disputing the refusal to defer the removal date set for
January 22, 2009.
III. Issue
[17]
To
assess the merits of the stay motion, the Court must determine whether the
applicant meets the three jurisprudential criteria established by the Federal
Court of Appeal in Toth v. Canada (Minister of Employment and Immigration)
(1988), 86 N.R. 302 (F.C.A.). These three criteria are as follows:
a. the
existence of a serious issue;
b. the existence
of irreparable harm;
c. the
assessment of the balance of convenience.
IV. Analysis
[18]
It
is to be noted that all three requirements must be met for this Court to grant
the requested stay. If one of them is not met, this Court cannot grant the
requested stay.
A. Serious
issue
[19]
The
applicant’s stay motion is attached to an application for leave disputing the
officer’s refusal to defer the removal date.
[20]
The
officer has very limited discretion. Among the factors that an applicant can
raise and that can permit an officer to defer the removal, there are, as this
Court decided in Vieira, illness, impediments to travelling and perhaps in cases of long‑standing applications that
were brought on a timely basis but have yet to be resolved; that is not the
case here.
[20] 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 perhaps in cases
of long-standing applications that were brought on a timely basis but have yet
to be resolved.
(Vieira v. Canada (Minister
of Public Safety and Emergency Preparedness), 2007 FC
626, 158 A.C.W.S. (3d) 450).
[21]
In
Arroyo v. Canada (Minister of Public Safety and Emergency
Preparedness), 2006 FC 260, 146 A.C.W.S. (3d) 525, this
Court reiterated the principle of an enforcement officer’s limited discretion
and stated that it is not the officer’s role to re‑evaluate all the
humanitarian and compassionate factors in a case:
[20] It is trite law that a removals officer
has limited discretion to defer the removal of a person who subject to an
enforceable removal order. If there is a valid and enforceable removal order,
immediate removal should be the rule and deferral the exception. Furthermore, a
deferral decision ought only to be set aside if it was patently unreasonable. (Immigration
and Refugee Protection Act, S.C. 2001, c. 27, s. 48; Padda v. Canada
(M.C.I.) 2003 FC 1081; Hailu
v. Canada (Sol. Gen.), 2005 FC 229.)
[22]
Moreover, a removals
officer does not have to defer a person's removal simply because that person
intends to file, or has filed an H & C application. Furthermore, the
removals officer is not obligated to evaluate the merits of any outstanding H
& C application or conduct his or her own assessment of the possible H
& C factors (Padda, supra; Morello, supra).
(Also, Sharma v. Canada (Minister
of Citizenship and Immigration), 2007 FC 1144, 161 A.C.W.S. (3d) 957
at para. 22).
[23]
The
applicant’s situation is not a source of a judicial stay.
[24]
A
removals officer can intervene only for departure arrangements, or compelling
or imminent situations. The applicant’s situation does not correspond to such
situations, and the officer did not err by refusing to defer the date of his
removal (page 8 of the applicant’s motion record):
[21] The Court
has established that removals officers have limited discretion to defer a
removal by reason of special or compelling circumstances.
[37] It is well-established law that
the discretion to defer a removal is very limited. It would be contrary to the
purposes and objects to the Act to expand, by judicial declaration, a removal
officer’s limited discretion so as to mandate a “mini H&C” review prior to
removal (Davis v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1628
paragraph 4 (T.D.) (QL); John v. Canada (Minister of Citizenship and
Immigration) 2003 F.C.J. No. 583 (T.D.) (QL).
(Adviento, above;
See also: Simoes, above; Williams,
above; Prasad, above; Griffith,
above.)
[22] The applicant did not demonstrate that she had
submitted evidence to the removals officer that could constitute sufficient
justification for the officer to exercise his discretion, which is limited to
deferring a removal by reason of special or compelling circumstances:
[45] The order whose deferral is in issue is a
mandatory order which the Minister is bound by law to execute. The exercise
of deferral requires justification for failing to obey a positive obligation
imposed by statute. That justification must be found in the statute or in
some other legal obligation imposed on the Minister which is of sufficient
importance to relieve the Minister from compliance with section 48 of the
Act [Immigration Act, R.S.C. 1985, c. 1‑2]. (Emphasis
added.)
(Wang, above)
[23] The applicant simply states in
her affidavit that the officer [translation]
“refused to stay the removal despite the fact that I told him about the ongoing
sponsorship proceedings” (paragraph 16, Affidavit of the Applicant,
page 12 of the Motion Record).
[24] It is settled law that a
pending sponsorship application is not per se an obstacle to removal.
[52] 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. Green v. Canada (Minister of
Employment and Immigration), [1984] 1 F.C. 441 (C.A.), (1983) 49
N.R. 225, cited in Cohen v. Canada (Minister of Citizenship and Immigration),
[1995] F.C.J. No. 589, (1995), 31 Imm. L.R. (2d) 134, per Noël J. (as he then
was).
(Wang, above; See also: Banwait v. Canada (Minister
of Citizenship and Immigration), [1998] F.C.J. No. 522,
paragraphs 17 to 19 (T.D.) (QL).)
[25] The applicant clearly did not
submit any evidence that could constitute justification for the removals
officer to defer the removal.
[26] Considering all of the
foregoing, the applicant failed to raise a serious issue in support of her
motion. The motion for a stay of removal could be dismissed on this ground
alone.
(Mendoza Duran v.
Canada (Minister of Public Safety and Emergency Preparedness), 2007 FC 738,
[2007] F.C.J. No. 988 (QL)).
[25]
The
applicant claims that the rest of his family, who are in Columbia, are planning
to settle in Canada.
[26]
Right
now, that contention is speculative.
[27]
The
applicant has not demonstrated the existence of a serious issue.
B. Irreparable
harm
[28]
In
this case, the applicant had the opportunity on several occasions to assert
that his life and safety were at risk in his country. The Immigration and Refugee
Board (IRB), the Federal Court and the PRRA officer determined that there was
no risk for the applicant.
[29]
In
the part entitled [translation]
“Irreparable harm”, the applicant bases his harm on the risks that were
assessed on his PRRA and HC application.
[30]
In
addition, the Court confirmed the PRRA decision by refusing to grant the ALJR filed
against that decision.
[31]
Therefore,
the PRRA officer’s findings are accepted as facts, and the applicant has not
demonstrated the existence of irreparable harm.
[32]
It
is important to point out that the notion of irreparable harm was defined by
the Court in Kerrutt v. Canada (Minister of Employment and Immigration)
(1992), 53 F.T.R. 93, 32 A.C.W.S. (3d) 621, by Justice Andrew McKay, as the return
of a person to a country where his or her safety or life is in jeopardy.
[33]
This
decision was followed by Justice Sandra Simpson where, in Calderon
v. Canada (Minister of Citizenship and Immigration) (1995), 92 F.T.R. 107,
54 A.C.W.S. (3d) 316, she stated the following with respect to the definition
of irreparable harm established in Kerrutt, above:
[22] . . .
This is a very strict test and I accept its premise
that irreparable harm must be very grave and more than the unfortunate hardship
associated with the breakup or relocation of a family.
[34]
With
respect to the applicant’s separation from his two children in Canada, the jurisprudence
is well established with respect to the principle that family separation is not
irreparable harm but a usual consequence of deportation:
[36] . . .
[translation]
Regarding the applicant's separation from his spouse, it is well
established in the jurisprudence that such a separation is not, in itself,
irreparable harm (see, for example, Celis v. Canada (Minister of
Citizenship and Immigration), [2002] F.C.J. No. 1679 (F.C.T.D) (QL), 2002
FCT 1231; Parsons v. Canada (Minister of Citizenship and Immigration),
[2003] F.C.J. No. 1161 (FC) (QL), 2003 FC 913; Damiye v. Canada (Minister
of Citizenship and Immigration), [2001] F.C.J. No. 70 (F.C.T.D.) (QL); Melo
v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J.
No. 403 (F.C.T.D.) (QL); Selliah v. Canada (Minister of Citizenship
and Immigration), [2004] F.C.J. No. 1200 (FCA) (QL), 2004 FCA 261).
(Samee c. M.C.I. &
MSPPC,
No. IMM-3616-07, September 25, 2007, Pinard J. (F.C.).
(Camara v. Canada (Minister of Public Safety and Emergency
Preparedness), 2008 FC 1089, [2008] F.C.J.
No. 1377 (QL)
[35]
As
Justice Denis Pelletier stated in Melo v. Canada (Minister of Citizenship
and Immigration), 188 F.T.R. 39, [2000] F.C.J. No.
403 (F.C.T.D.) (QL):
[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. There is
nothing in Mr. Melo's circumstances which takes it out of the usual consequences
of deportation.
[36]
Finally,
in Selliah (Minister of Citizenship and Immigration), 2004 FCA 261,
[2004] F.C.J. No. 1200 (QL), the Federal Court of Appeal wrote the following:
[13] The removal of persons who have remained
in Canada without status will always disrupt the lives that they have succeeded
in building here. This is likely to be particularly true of young children who
have no memory of the country that they left. Nonetheless, the kinds of
hardship typically occasioned by removal cannot, in my view, constitute
irreparable harm for the purpose of the Toth rule, otherwise stays would
have to be granted in most cases, provided only that there is a serious issue
to be tried: Melo v. Canada (Minister of Citizenship and Immigration),
(2000), 188 F.T.R. 29.
[37]
In
addition, at paragraph 8 of the part entitled [translation]
“Irreparable harm”, the applicant refers to section 7 of the Charter,
saying that everyone has the right to life, liberty and security of the person.
[38]
This
is what the Court stated on this point in the context of a stay motion:
[37] It is clearly
established in case law that the removal of a person from Canada is not
contrary to the principles of natural justice and that the enforcement of a
removal order is not contrary to sections 7 and 12 of the Charter. (Canada
(Minister of Employment and Immigration) v. Chiarelli, [1992]
1 S.C.R. 711, at pages 733-735; Medovarski v. Canada
(Minister of Citizenship and Immigration), [2005] 2 S.C.R. 539 at
paragraph 46; Isomi Canada (Minister of Citizenship and
Immigration), 2006 FC 1394, [2006] F.C.J. No. 1753 (QL), at
paragraph 32 (Simon Noël J.).)
(Aoutlev
Canada
(Minister of Citizenship and Immigration), 2007 FC
111, [2007] F.C.J. No. 183 (QL).
[39]
The
applicant has not proven the existence of irreparable harm.
C.
Balance of convenience
[40]
In
the part entitled [translation] “Balance
of convenience”, the applicant refers to a pending application for permanent
residence.
[41]
There
is nothing that shows such a situation in this case.
[42]
The
applicant says that he is able to support himself and that he is not a danger
to the public.
[43]
In
Selliah, above, the Federal Court of Appeal stated that such criteria do
not demonstrate that the balance of convenience lies in an applicant’s favour.
[21 Counsel says
that since the appellants have no criminal record, are not security concerns,
and are financially established and socially integrated in Canada, the balance
of convenience favours maintaining the status quo until their appeal is
decided.
[22] I do not agree.
They have had three negative administrative decisions, which have all been
upheld by the Federal Court. It is nearly four years since they first arrived
here. In my view, the balance of convenience does not favour delaying further
the discharge of either their duty, as persons subject to an enforceable
removal order, to leave Canada immediately, or the Minister's duty to remove
them as soon as reasonably practicable: IRPA, subsection (48)2. This is not
simply a question of administrative convenience, but implicates the integrity
and fairness of, and public confidence in, Canada's system of immigration
control.
[44]
In
the absence of a serious issue and irreparable harm, the balance of convenience
favours the Minister, who has an interest in seeing to the effective and timely
implementation of the deportation order (Mobley v. Canada (Minister of
Citizenship and Immigration), [1995] F.C.J. No. 65 (QL)).
[45]
Indeed,
subsection 48(2) of the IRPA states:
|
48.
(1) Enforceable removal order – A removal order is enforceable if it has come
into force and is not stayed.
(2)
Effect – 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
it reasonably practicable.
|
48.
(1) Mesure de renvoi – La mesure de renvoi est exécutoire depuis sa prise
d’effet dès lors qu’elle ne fait pas l’objet d’un sursis.
(2)
Conséquence – 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.
|
V. Conclusion
[46]
Based
on all of the foregoing, the applicant does not meet the jurisprudential criteria
for obtaining a judicial stay.
JUDGMENT
THE COURT ORDERS
that the application for a stay is
dismissed.
“Michel
M.J. Shore”
Certified true
translation
Mary Jo Egan,
LLB
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