Date: 20090122
Docket: IMM-5106-08
Citation: 2009 FC 41
Ottawa, Ontario, January 22, 2009
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
PHILIP
SOITA WASHIKO SIMUYU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION & THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Overview
[1]
To
the dismay of the counsel of the Applicant, the former was unaware of the full
situation of his own client, the Applicant. Therefore, a piece of the story which
unfolds below appeared as surprising to counsel of the Applicant as it was to
the Court. The Applicant weaved a narrative through several spools of thread, one
of which was unknown even to his counsel, who attempted to relate his client’s
background of which, he, himself, had not been given a key missing strand. The
element of surprise to the counsel was duly recognized in open Court.
II. Introduction
[2]
The Court
received two stay motions from the Applicant within an eight day period from
Monday, January 5, 2009, to Monday, January 12, 2009. The Applicant requested
that each of these stay motions be heard within three days, even though he was
not scheduled for removal until January 31, 2009. Despite the tight time
constraints imposed by the Applicant, the Respondent had attempted to
accommodate the Applicant’s timeframe and had not requested postponement. The
Court is cognizant of the prejudicial effect that these unnecessarily brief time
constraints have imposed upon the Respondent.
III. Judicial Procedure
[3]
The
Applicant moves to stay his removal scheduled for January 31, 2009. This Court
dismissed a similar stay motion by the Applicant on January 8, 2009.
IV. Background
[4]
The
Applicant, Mr. Philip Soita Washiko Simuyu, is a Kenyan national who entered Canada as a domestic servant
for the Kenyan High Commission. His official status in Canada ended in June
2005 when his employer returned to Kenya.
[5]
The
Applicant’s subsequent applications for sponsorship, extension of his visitor
status and student visa were all denied. During the course of the hearing,
counsel for the Applicant, himself, discovered that the Applicant now has a
second sponsorship application with a second person for consideration subsequent
to having a sponsorship application with a first person revoked. The
Applicant’s counsel was completely unaware of the first sponsorship
application.
[6]
The
Applicant submitted a Pre-Removal Risk Assessment (PRRA) application, which was
rejected, on September 19, 2007.
[7]
The
Applicant submitted an application for leave to seek judicial review of the
negative PRRA decision, which was withdrawn after he was granted a stay of his
removal, on January 31, 2008, due to political instability in Kenya at that time. The stay
was valid pending the outcome of his second PRRA application.
[8]
On
February 19, 2009, the Applicant submitted his second PRRA application, which
was rejected, on September 22, 2008.
[9]
On
February 28, 2008, the Canadian Border Services Agency (CBSA) issued guidelines
indicating that all removals to Kenya should proceed as normal.
[10]
On
November 19, 2008, the Applicant filed this application for leave and for
judicial review of the September 22, 2008, second negative PRRA decision.
[11]
On
January 8, 2009, Justice Anne Mactavish dismissed the Applicant’s motion for a
stay of his removal.
V. Issues
[12]
(1)
Does the
Applicant’s decision to file a second stay motion one week after this Court
dismissed his first stay motion prejudice the Respondent?
(2) Does the Applicant meet the
tri-partite test for the granting of a stay of his removal?
VI. Analysis
(1) Prejudice to the Respondent
(i)
Abuse of Process
[13]
This
Court dismissed a similar stay motion by the Applicant one week ago. To allow
the Applicant to adduce new evidence in response to weaknesses identified by
this Court in his previous stay motion last week would prejudice the Respondent
and constitute an abuse of process.
[14]
This
Court has noted that, “…it is trite law that a stay of removal is an equitable
remedy and, as such, it is open to the Court to deny the remedy in
circumstances where an applicant does not come to the Court with ‘clean
hands’.” One week ago, the Applicant brought a motion before this Court seeking
to stay his removal on the basis that his wife’s pregnancy [related to a
pending second sponsorship application (with a second person)] established
serious issues to be tried, irreparable harm and a favourable balance of
convenience. Justice Mactavish dismissed the Applicant’s stay motion that same
day. (Lima v. Canada (Minister of
Citizenship and Immigration), 2007 FC 383, 156 A.C.W.S. (3d) 1149 at para.
16; Order of Justice Mactavish, dated January 8, 2009).
[15]
The
Applicant did not bring this stay motion at the same time that he brought his
first stay motion one week ago. All of the facts and new evidence that the Applicant
presents in this motion were in the possession of the Applicant during his
hearing but he failed to submit the information. The Applicant is unable to access
an equitable remedy in the form of a stay of removal, as clean hands are required
to obtain such relief (Toth v. Canada (Minister of Employment and
Immigration) (1988), 86 N.R. 302 (F.C.A.); Lima, above).
(ii)
New evidence not considered
[16]
The
new information which the Applicant seeks to adduce was not before the PRRA
officer. The Applicant had an opportunity to make representations to the
officer when he filed his application, yet the officer notes that no supporting
documentary evidence was submitted. This Court has repeatedly refused to
consider new evidence, even where it contains serious allegations, if it was
not before the original decision maker in the underlying proceeding under
review; therefore, Exhibits “A” to “E” of the Applicant’s affidavit are not
considered by this Court (Kante v. Canada (Public Safety and Emergency Preparedness),
2007 FC 109, [2007] F.C.J. No. 260 (QL) at para. 9; Park v. Canada (Minister
of Citizenship and Immigration), 2008 FC 623, [2008] F.C.J. No. 786 (QL) at
para. 9).
(iii) Lack of clarity in Notice of
Motion and Factum are prejudicial
[17]
The
Applicant’s notice of motion and his factum both indicated that he seeks a stay
of the decision of an enforcement officer of the CBSA. The Applicant has
already brought this matter before this Court and received a negative decision
from Justice Mactavish. The Applicant referred to the underlying decision of
the PRRA officer and not the decision of the enforcement officer. These errors
further prejudice the Respondent’s ability to respond since the scope of the Applicant’s
motion lacks clarity. Given the short timeframe for filing responding
submissions, the Applicant has imposed upon the Respondent, ambiguity exists as
the counsel for the Respondent was also as unaware of a first spousal
application (with a first person) as was the counsel of the Applicant.
(iv) Overarching prejudice to
Respondent
[18]
The Court
received two stay motions from the Applicant within an eight day period from
Monday, January 5, 2009, to Monday, January 12, 2009. The Applicant requested
that each of these stay motions be heard within three days, even though he was
not scheduled for removal until January 31, 2009. Despite the tight time
constraints imposed by the Applicant, the Respondent had attempted to
accommodate the Applicant’s timeframe and had not requested postponement. The
Court is cognizant of the prejudicial effect that these unnecessarily brief time
constraints have imposed upon the Respondent.
(2) Applicant has not
met the tri-partite test for the grant of a stay
[19]
To
obtain a stay pending determination of a case on its merits, the Applicant must
establish all of the following three requirements:
a.
there is a serious issue
to be tried;
b.
the Applicant would
suffer irreparable harm if the Court refused relief; and
c. the balance of
convenience favours the Applicant because he will suffer the greater harm from
the refusal of the stay.
(Toth,
above).
[20]
In
the present case, the Applicant has failed to demonstrate that he satisfies any
of the requirements of the test; therefore, the Court must dismiss the motion
for a stay of removal as it did last week.
(a) Serious Issue
[21]
The
determination of risk on return is fact-driven inquiry which attracts
significant deference. Where there is nothing perverse or patently unreasonable
in the PRRA decision there is no serious issue warranting a stay of removal (Bui
v. Canada (Minister of Citizenship and Immigration), 2007 FC 1369, 68 Imm.
L.R. (3d) 207; Ahmed v. Canada (Minister of Citizenship and Immigration), 2004 FC 686, 131
A.C.W.S. (3d) 304 at para. 5).
[22]
As
the Applicant notes, this Court stated in Aquila v. Canada (Minister of
Citizenship and Immigration) (2000), 94 A.C.W.S. (3d) 960, [2000] F.C.J.
No. 36 (QL), at paragraph 8, that although a Court must not undertake a
prolonged assessment of the merits of a case when determining whether there is
a serious issue to be tried, “[t]he assessment does require that the pleadings
in the main action be examined in light of the evidence presented to support
them.” There is little for this Court to assess in this regard, since neither
the Applicant nor his counsel submitted any documentary evidence to the PRRA
officer or this Court in the underlying judicial review application to support
his claims of risk (Applicant’s Record, PRRA decision at p. 11, para. 6).
[23]
Without
such evidence, the officer was obliged to consult objective country condition
reports to assess the Applicant’s claims. As this Court stated in Hassaballa
v. Canada (Minister of Citizenship and Immigration), 2007 FC 489, 157
A.C.W.S. (3d) 602 at paragraph 33, “…the PRRA officer has not only the right
but the duty to examine the most recent sources of information in
conducting the risk assessment; the PRRA officer cannot be limited to the material
filed by the applicant.” (Emphasis added).
[24]
The
Applicant argues that the PRRA officer committed a reviewable error by
referring to objective evidence regarding current country conditions without
notifying the Applicant, thereby depriving him of an opportunity to respond; however,
both this Court and the Federal Court of Appeal have established that an immigration
officer is under no obligation to disclose the fact that he consulted publicly
available documents relating to general country conditions if those documents
were available and accessible to the Applicant at the time he submitted his
application (Mancia v. Canada (Minister of Citizenship and
Immigration), [1998] 3 F.C. 461, 79 A.C.W.S. (3d) 796 at paras. 26-27; Lima
v. Canada (Minister of Citizenship and Immigration), 2008 FC 222, 165
A.C.W.S. (3d) 313 at para. 13).
[25]
The
core information upon which the officer relied was publicly available before
the PRRA application was submitted, thereby providing the Applicant with an
opportunity to make representations on it. The officer relied heavily on a 2007
United States Department of State (U.S. DOS) country report that summarized
human rights practices in Kenya,
including the existence of police misconduct, instances of violence against
minority groups and state attempts to address these problems. The officer also
relied on a Human Rights Watch report from January 2008 that indicated
decreasing violence and greater political stability in Kenya. Both documents
pre-dated submission of the PRRA application. Moreover, this Court has stated
that both of these documents are well-known sources of general information that
are in the public domain, and are frequently cited by immigration counsel; therefore
the Applicant was not prevented from making representations in relation to the
general content of either of these documents (Lima, above).
[26]
The
officer relied upon two documents that post-dated submission of the PRRA
application: a United Nations (UN) report and a report from the British
Broadcasting Corporation (BBC). The Federal Court of Appeal stated in Mancia,
above, that:
[27] …
(a) with respect to documents relied upon from public
sources in relation to general country conditions which were available and
accessible at Documentation Centres at the time submissions were made by an
applicant, fairness does not require the post claims determination officer to disclose
them in advance of determining the matter;
(b) with respect to documents relied upon from public
sources in relation to general country conditions which became available and
accessible after the filing of an applicant's submissions, fairness requires
disclosure by the post claims determination officer where they are novel and
significant and where they evidence changes in the general country conditions
that may affect the decision. (Emphasis added).
[27]
Although
the BBC and UN documents relied upon by the officer post-date submission of the
PRRA application, the information they contained was not so new or novel that
the Applicant was prevented from making representations to the officer on their
content at the time he submitted his application. Moreover, the information
they contained was neither novel nor significant to the point that it could
have altered the decision of the PRRA officer. For example, the instability which
resulted from the December 2007 elections was known to the Applicant at the time
of the application.
[28]
The
officer’s conclusions regarding Kenya’s effective control of its territory, the
presence of police and civil authority and the country’s ability to protect its
citizens were all reasonably open to the officer on the basis of evidence that
pre-dated submission of the PRRA application. The reasonableness of these
conclusions may be substantiated without any reference to the documents that
post-dated submission of the PRRA application; therefore, the information
relied upon by the officer that post-dated submission of the application was
not so novel, significant or indicative of changes in general country
conditions that its absence would have altered the officer’s decision.
[29]
The
officer’s conclusions regarding the availability of state protection and the Applicant’s
failure to meet the requirements of either sections 96 or 97 of the IPRA were
among the range of possible, acceptable outcomes available to the officer on
the evidence. The Applicant has not established that the officer’s decision was
unreasonable.
[30]
In
view of the foregoing, the underlying judicial review application of the PRRA
officer’s decision does not raise a serious issue. Consequently, the Applicant
has failed to fulfill the first branch of the tri-partite test.
(b) Irreparable Harm
[31]
For
the purposes of a stay of removal, “irreparable harm” is a very strict test. Irreparable
harm implies the serious likelihood of jeopardy to the Applicant's life or
safety (Melo v. Canada (Minister of Citizenship and Immigration) (2000), 188 F.T.R. 39,
96 A.C.W.S. (3d) 278 at paras. 20-21.
[32]
The
evidence in support of irreparable harm must be non-speculative and credible.
There must be a high degree of probability that the harm alleged will occur if
the stay is not granted (Radji v. Canada (Minister of
Citizenship and Immigration), 2007 FC 100, 308 F.T.R. 175 at para. 40; Selliah
v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 261, 132 A.C.W.S. (3d) 457 at para.
13).
[33]
The
Supreme Court has held that a state is presumed capable of protecting its
citizens and claimants must therefore provide “clear and convincing
confirmation” of the state’s inability or unwillingness to protect them. As the
officer’s notes indicate, the Applicant has failed to rebut the presumption of
state protection, since he did not provide any documentary evidence to support
his allegations of risk. The totality of the evidence examined by the officer
suggests that state protection is available to the Applicant (Canada
(Attorney General) v. Ward, [1993] 2 S.C.R. 689).
[34]
The
Applicant’s affidavit contains a summary of an incident that occurred to him
before he left Kenya in 2003 in which he
witnessed the murders of two students while armed police watched. The details
of this incident were before the first and second PRRA officers, both of whom
determined that the Applicant’s removal could proceed. Moreover, the incident
contained in this affidavit was before Justice Mactavish when she dismissed the
Applicant’s stay motion last week; therefore, the Applicant’s risk has already
been assessed a number of times and each time he was found not to be at risk in
his country of origin. There is significant support for the claim that the Applicant
would not face irreparable harm if returned to Kenya (Golubyev v. Canada (Minister of
Citizenship and Immigration), 2007 FC 394, 156 A.C.W.S. (3d) 1147 at para.
13; Manohararaj v. Canada (Minister of Citizenship and Immigration), 2006 FC 376, 147
A.C.W.S. (3d) 660).
(c) The balance of convenience
[35]
In
the present case, the balance of convenience favours the Respondent, who is
under a statutory obligation under paragraph 48(2) of the IRPA to ensure that
the Applicant's removal is carried out as soon as reasonably possible.
[36]
Any
inconvenience that the Applicant may suffer as a result of his removal from
Canada is outweighed by the public interest which the Respondent seeks to
maintain by ensuring that removal orders are executed (Aquila, above at
para. 18).
[37]
The Applicant
submits that the balance of convenience favours him because he has not been a
burden to Canadian society, has not been on welfare and has not been criminally
charged. Yet the mere fact that the person seeking a stay has no criminal
record and is financially established and socially integrated in Canada does not
mean that the balance of convenience favours granting a stay order (Selliah,
above at paras. 21 & 22).
VII. Conclusion
[38]
The
Applicant has failed to establish each of the three parts of the tri-partite
stay test; therefore, the Applicant’s motion for a stay of removal is
dismissed.
JUDGMENT
THIS COURT ORDERS that the
Applicant’s motion for a stay of removal be dismissed.
“Michel M.J. Shore”
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