Date: 20090428
Docket: IMM-1623-09
Citation:
2009 FC 425
Ottawa, Ontario, April 28, 2009
PRESENT:
The Honourable Mr. Justice Shore
BETWEEN:
JORGE
FABIAN Rafael Domingo
Applicant
and
MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Overview
[1]
The
applicant has used all the remedies that he is entitled to in Canada, and all his
applications have been dismissed until now. The balance of convenience,
therefore, lies in favour of the Minister. The fact that the applicant supports
himself and does not pose a danger to Canada does not tip the
balance of convenience in his favour, according to the teachings of this Court:
[translation]
[42] The
applicant states that he is able to support himself and that he does not pose a
danger to the public.
[43] In
Selliah, above, the Federal Court of Appeal stated that criteria of this
nature do not demonstrate that the balance of convenience favours the
applicant.
. . .
[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.
(Salazar v. Canada
(Minister of Public Safety and Emergency Preparedness),
2009 FC 56, [2009] F.C.J. No. 77 (QL)).
[2]
The
applicant has failed to discharge his burden of demonstrating that there is a
serious issue to be tried. Consequently, the application should be dismissed on
this ground alone:
[36] I am not
persuaded that Mr. Cardoza Quinteros has raised any serious issue that would
warrant the grant of a stay of the removal order. Having failed to meet one
of the branches of the tripartite test, this application for a stay will be
dismissed. It is not necessary that I examine whether the Applicant has met
the other two branches of the Toth tripartite test. (Emphasis added.)
(Quinteros v. Canada (Minister of
Citizenship and Immigration), 2008 FC 643, [2008] F.C.J. No. 812
(QL)).
[3]
There
is no evidence to support the applicant’s allegation:
[32] The onus is on the
applicant to demonstrate, through clear and convincing evidence of irreparable
harm, that the extraordinary remedy of a stay of removal is warranted.
Irreparable harm must constitute more than a series of possibilities and cannot
be simply based on assertions and speculation (Atwal v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 427).
(Petrovych v. Canada
(Minister of Public Safety and Emergency Preparedness),
2009 FC 110, [2009] F.C.J. No. 113 (QL)).
[4]
No
irreparable harm has been made out regarding a non-credible story of
persecution.
II. Introduction
[5]
On
April 2, 2009, the applicant filed an application for leave and judicial review
(ALJR) of the decision by the removals officer dated March 31, 2009.
[6]
In
that decision, the officer refused to defer the applicant’s removal to the Dominican Republic
scheduled for April 30, 2009.
[7]
Incidental
to the ALJR, the applicant filed a motion, on April 15, 2009, for a stay of enforcement
of his removal to the Dominican Republic.
[8]
The
applicant has not demonstrated a serious issue with respect to the decision by the
Minister’s delegate.
[9]
In
addition, his removal to the Dominican Republic will not cause irreparable
harm, and the balance of convenience favours the public interest in ensuring
that the process under the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (IRPA) follows its course.
III. Facts
[10]
The
applicant, Mr. Rafael Domingo Jorge Fabian, is a citizen of
the Dominican
Republic.
[11]
In
2005, the applicant submitted a visa request in Port-au-Prince for Canada, which was
accepted on August 1, 2005.
[12]
On
September 11, 2005, the applicant arrived in Canada, in Toronto, falsely
stating that he had come to participate in a sporting competition.
[13]
On
February 3, 2006, the applicant filed an application to extend his stay in Canada. In that
application, he said that he wanted to stay in Canada because he
enjoyed his work. The application for an extension was granted.
[14]
The
applicant’s sworn declaration, attached to the application, stated that he
wanted to extend his stay in Canada as a temporary worker only, with no other
intention.
[15]
On
September 13, 2006, the applicant submitted a refugee claim. In the document
“Information on Individuals Seeking Refugee Protection”, the applicant stated
that his two children were living in the Dominican Republic. He said
that he feared police officers and government officials.
[16]
On
October 10, 2006, during an interview with an immigration officer, the
applicant said that he had learned that he could claim refugee status in order to
obtain a work visa.
[17]
In
his Personal Information Form (PIF), the applicant alleged that a police
officer had tried to assault his wife. The police officer struck him and took the
applicant into custody. After several people intervened, including two
journalists, the applicant was released. He filed a complaint against the
police officer, who was relocated to another area. The applicant stated that he
had received threatening telephone calls.
[18]
The
PIF also indicated that the applicant’s children live in the Dominican
Republic.
[19]
The
Refugee Protection Division (RPD) heard the refugee claim on April 1, 2008, at
which time the applicant was represented by counsel.
[20]
The
RPD denied the refugee claim, finding that the applicant had absolutely no
credibility. In a detailed and well-reasoned decision, the RPD noted many
contradictions, omissions, additions and inconsistencies regarding the
fundamentals of the applicant’s story.
[21]
The
RPD also noted that the applicant had entered Canada on the basis of false
information, that his reason for coming to Canada was economic
and that he waited a very long time before claiming Canada’s protection, all of
which showed no fear of persecution.
[22]
In
the alternative, the RPD also determined that the applicant had not rebutted
the presumption that the Dominican Republic was capable of
adequately protecting him. This finding was based on the general objective
documentary evidence. In addition, the RPD noted that when the applicant filed
a complaint following the attack, the authorities took action, and that he did
not file a complaint about the threats he subsequently received.
[23]
The
applicant filed an ALJR of this decision, which was dismissed on October 14,
2008, by Chief Justice Allan Lutfy.
[24]
On
January 27, 2009, the applicant met with an immigration officer who told him that
he could submit an application for a pre-removal risk assessment (PRRA) no
later than February 11, 2009. The applicant advised the officer that
a sponsorship application had been sent on February 23, 2009.
[25]
The
PRRA application was received late, on February 13, 2009. The application stated
that the applicant’s children lived in the Dominican Republic.
[26]
In
support of his application, the applicant alleged that a police officer had
tried to assault his wife. The officer struck the applicant and took him into
custody. After several people intervened, including two journalists, the
applicant was released. He filed a complaint against the police officer, who
was relocated to another area. The applicant stated that he had received threatening
telephone calls and that the police officer was still searching for him.
[27]
The
applicant’s only evidence in support of his PRRA application was a marriage
certificate.
[28]
On
March 17, 2009, the applicant was informed that his PRRA application had been
rejected: the PRRA officer determined that the applicant had not demonstrated that
he would be at risk should he return to the Dominican Republic.
[29]
On
March 31, 2009, at a meeting with a removals officer, the applicant presented a
ticket dated April 30, 2009, although he had been advised that his ticket
should be dated April 17, 2009.
[30]
The
applicant asked that his removal be deferred, indicating to the officer that he
was awaiting the result of his sponsorship application and that his wife was
going to give birth to their child in June.
[31]
Since
the officer found that these grounds were insufficient to justify deferring the
removal, he refused to defer it.
[32]
That
decision is the subject of the ALJR underlying the stay motion. The removal is
scheduled for April 30, 2009.
IV. Issue
[33]
Has
the applicant met the three requisite criteria for obtaining a judicial stay of
enforcement of a removal order?
V. Analysis
[34]
To
obtain a judicial stay of enforcement of a removal order, the applicant must meet
the following three cumulative criteria set out in Toth v. Canada (Minister of
Employment and Immigration) (1988), 86 N.R. 302, 11 A.C.W.S. (3d) 440, and
consistently endorsed since then:
a.
he
has raised a serious issue to be tried;
b.
he
will suffer irreparable harm if the order is not granted; and
c.
the balance of convenience, considering the total situation of
both parties, favours granting the order.
(For example, see Castillo v. Canada
(Public Safety and Emergency Preparedness), 2008 FC 172, [2008] F.C.J. No. 216 (QL) at paragraph 10).
A.
Serious issue
[35]
The
applicant must show that his application is not frivolous or vexatious. The
Court must conduct a preliminary review of the merits of the case to determine
the merits of the issue to be considered:
[18] Granting this
motion would effectively grant the relief which the Applicant seeks in the
underlying application for leave and for judicial review (i.e. deferring
removal). This Court must, therefore, engage in a more extensive review of
the merits of the application. . . . (Emphasis added.)
(Patterson v. Canada
(Minister of Citizenship and Immigration), 2008 FC 406, 166A.C.W.S. (3d) 300).
[36]
None
of the issues raised by the applicant in his submissions constitute a serious
issue.
[37]
A
removals officer is required to enforce any validly issued removal order. Nonetheless,
subsection 48(2) of the IRPA grants some discretion to the officers in carrying
out their duties:
|
48 (1) A removal order is enforceable if it has come into
force and is not stayed.
(2) 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 is reasonably practicable.
|
48 (1) La mesure de renvoi est exécutoire depuis sa prise d’effet
dès lors qu’elle ne fait pas l’objet d’un sursis.
(2) 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.
|
[38]
Thus,
officers have the discretion to stay a removal order if it is not reasonably
practicable to enforce the removal.
[39]
However,
the scope of this discretion is extremely narrow. Indeed, the jurisprudence
of this Court has established that a removal should only be stayed in cases
where there is a serious, practical impediment to the removal:
[7] As
my colleague Mr. Justice Barnes noted in Griffiths v. Canada (Solicitor
General), [2006] F.C.J. No. 182 at paragraph 19, a deferral is “a
temporary measure necessary to obviate a serious, practical impediment to
immediate removal”. (Emphasis added).
(Uthayakumar v. Canada
(Minister of Public Safety and Emergency
Preparedness),
2007 FC 98, 161 A.C.W.S. (3d) 466).
[40]
It
is settled law that the person who seeks to defer the removal has the onus of adducing
evidence showing that this is justified (Duran v. Canada
(Minister of Public Safety and Emergency Preparedness),
2007 FC 738, [2007] F.C.J. No. 988 (QL)).
[41]
Accordingly,
to justify deferring the removal, the applicant had the onus of demonstrating
to the officer that there was a serious impediment (for example, a physical
condition, the end of the school year or the lack of travel documents) to
returning him to the Dominican Republic. He failed to do so. As
this Court has stated:
[19] The validity of the
removal order is not in doubt. Removal officers have a statutory duty to
remove persons subject to valid removal orders from Canada as soon as
reasonably practicable. (Immigration and Refugee Protection Act, S.C.
2001, c. 27 (IRPA), ss. 48(2).)
[20] The discretion
which a removal officer may exercise is very limited, and in any case, is
restricted as to when a removal order will be executed. In deciding when it
is “reasonably practicable” for a removal order to be executed, an officer may
consider various factors such as illness, other impediments to travelling, and
pending H&C applications. (Simoes v. Canada (Minister of
Citizenship and Immigration) (2000), 187 F.T.R. 219; Wang, above.)
(Emphasis added.)
(Patterson, above).
[42]
The
Court must show deference to the officer’s refusal to defer the removal:
[5] While
there is some divergence in the jurisprudence with respect to the applicable
standard of review, the preponderance of authority appears to be to the effect
that the appropriate standard of review of an officer’s refusal to defer removal
is patent unreasonableness. See, for example, Zenunaj v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 2133, and the pragmatic and
functional analysis at paragraph 21. Counsel for the parties agreed that this
is the appropriate standard of review, at least where the question is
essentially one of fact. I am prepared to apply that standard of review to the
decision.
(Uthayakumar, above).
[43]
The
applicant states in his affidavit that his counsel contacted the officer to
request a stay of removal, indicating that a sponsorship application was
pending, that the applicant’s wife was pregnant and that the stay would be in
the best interests of his children.
[44]
It
appears, however, from the officer’s notes and affidavit that the only factors the
applicant referred to were a sponsorship application and his wife’s pregnancy.
The children’s interests were not argued before the officer to justify
deferring the removal. In reality, the applicant’s file shows that his children
are in the Dominican Republic.
[45]
In
addition, the applicant did not provide any evidence to the officer to
support his allegations.
[46]
As
Ms. Suzanne Alary stated in her affidavit, a sponsorship application regarding
the applicant was, in fact, submitted in January 2009.
[47]
At
that time, since the applicant had not signed the undertaking, the kit was sent
back to the applicant and the processing fee was not cashed. Accordingly, at
that point, no sponsorship application involving the applicant had been
submitted for review.
[48]
Nonetheless,
the legislation does not provide for a stay pending the review of a sponsorship
application for the spouse or common-law partner in Canada (Immigration and
Refugee Protection Regulations, S.O.R./2002-227, sections 230 to 234 (Regulations)),
and it is settled law that a sponsorship application does not constitute an
impediment to removal:
[translation]
[24] It is settled law that a
pending sponsorship application is not, in itself, an impediment 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,
paras. 17 to 19 (T.D.) (QL).) (Emphasis added).
(Salazar, above).
[49]
A
spouse may apply to sponsor an applicant, even though the spouse is outside Canada (Regulations,
section 117).
[50]
The
applicant claims that the officer should have deferred the removal because he
told the officer that his wife was pregnant. However, no other information was
provided to the officer, nor was he given any document about the
pregnancy.
[51]
In
the absence of evidence, it was reasonable for the officer to refuse to defer
the removal because the applicant did not demonstrate any “special or
compelling” circumstances. The mere fact that the applicant’s wife was
pregnant, in and of itself, was not a special or compelling circumstance (Hwara v. Canada
(Minister of Public Safety and Emergency
Preparedness),
2006 FC 1035, 151 A.C.W.S. (3d) 896).
[52]
The
agent did not have before him any reason to defer the removal. The applicant
had the onus of providing evidence to justify deferring the removal, but he did
not do so. As this Court explained:
[2] The applicant did
not demonstrate that she had submitted to the removals officer evidence that
could constitute sufficient justification for the officer to exercise his
discretion, which is limited to deferring the 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 and Refugee Protection Act, R.S.C. (1985), c. I-2]. (Emphasis added)
(Wang v. Canada (Minister
of Citizenship and Immigration), 2001 FCT 148,
[2001] F.C.J. No. 295, paragraph 45 (QL).)
(Duran,
above).
[53]
Thus,
absent any evidence, the refusal to defer the removal was completely
reasonable. The applicant failed to satisfy the test of “special or compelling
circumstances”.
[54]
Furthermore,
this Court recently established that it is not incumbent on the removals
officer to examine humanitarian and compassionate considerations (H&C)
where the applicant has not filed an H&C application, which is the case
here:
[13] The third alleged error is that
the enforcement officer did not consider the best interests of the child. There
is authority holding that the limited discretion of the enforcement officer
does not extend to considering the best interests of the child, since that is
the purpose of the H & C application: John v. Canada
(Minister of Citizenship and Immigration) 2003 FCT 420, F.C.J. No. 583; Banik v.
Canada (Minister of Citizenship and Immigration) IMM-4861-03; Robin
v. Canada (Minister of Citizenship and Immigration) IMM-5796-03.
That question does not arise on these facts. The enforcement order did have
regard to the emotional and financial impact on Mr. Padda’s step-daughter. The
child’s interests were weighed together with the other factors and the officer
concluded that when viewed in totality, the circumstances did not militate in
favour of deferral. Again, what the applicant seeks is for the court to
re-weigh the factors. That cannot be done and there is no serious issue here. (Emphasis
added).
(Padda v. Canada (Minister of
Citizenship and Immigration), 2003
FC
1081, 125 A.C.W.S. (3d) 686; also, Sheechoria v.
MPSEP, (IMM-853-09;
February 27, 2009), Justice Russell – stay denied).
[55]
It
is clear from the officer’s affidavit and interview notes that the applicant
did not pursue the best interests of the children argument to justify deferring
the removal.
[56]
No
evidence
to this effect was submitted to the officer. On the contrary, it is clear from
the documents in the record that the children are in the Dominican
Republic.
It also appears that the applicant only purchased a one-way plane ticket.
[57]
Even
if the applicant had made submissions about the children’s interests, which he
did not do, absent any evidence, the officer would have had to nonetheless
refuse to defer the removal:
[4] In
this case I am not persuaded that the underlying application has a likelihood
of success for these reasons:
1. The
removals officer was not under an obligation to consider the best interests of
the child in this case. His discretion to defer removal is limited. The
case of Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817 does not, in my view, extend
to the discretion of a removals officer, particularly where there is no clear
evidence before the officer as to the impact of the removal on the child (Simoes
v. Canada (Minister of Citizenship and Immigration), [2000]
F.C.J. No. 936 (T.D.) (QL); John v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 420, [2003] F.C.J. No. 583 (QL)). In
this case, even if I assume that no specific request was required, there was no
evidence put before the officer other than the existence of a child and family.
(Emphasis added.)
(Buchting v. Canada
(Minister of Citizenship and Immigration), 2003
FC
953, 124 A.C.W.S. (3d) 1116).
[58]
In
order for the Court to grant the applicant’s stay motion, he must demonstrate
that there is a reasonable chance of succeeding on his main application, i.e.
the ALJR of the officer’s refusal to defer the removal (Duran, above).
[59]
The
first argument relates to the fact that the applicant’s wife was pregnant,
which could lead to complications. However, no evidence in this regard was
submitted to the officer. The documents that are attached to the applicant’s
record were not provided to the officer.
[60]
It
is, therefore, clear that the officer cannot be criticized for not considering
this factor:
[22] As to the
allegation of danger as a baptized Sikh, the applicant never maintained that he
was a victim of an incident of any kind as the result of being a baptized Sikh.
The panel cannot be blamed for not ruling on a ground which he did not
allege and which did not significantly emerge from the evidence as a whole:
Guajardo-Espinoza v. Canada (Minister of Employment and Immigration) (F.C.A.),
[1993] F.C.J. No. 797 (QL). This situation is different from Singh v. Canada
(Minister of Citizenship and Immigration), 2007 FC 732, [2007] F.C.J. No.
977 (QL), where the question concerned a conclusion as to a minimum basis for
the applicant’s claim and where the risk as a baptized Sikh had been
specifically raised at the first hearing. (Emphasis added).
(Singh v. Canada
(Minister of Citizenship and Immigration), 2008 FC
453, [2008] F.C.J. No. 574 (QL)).
[61]
Consequently,
there is no serious issue in this regard.
[62]
The
applicant’s second argument concerns the interests of the children. It
appears that the applicant did not make this argument to the officer,
who thus could not have erred by not considering the interests of the children.
On the facts of this case, as stated previously, the documents in the record
show that the applicant’s children are in the Dominican Republic.
[63]
The
applicant’s third argument concerns the sponsorship application. It
appears that there is no outstanding sponsorship application involving the
applicant because the one that was submitted was returned since it was
incomplete.
[64]
The
applicant’s fourth argument relates to the ALJR of the PRRA decision,
which is pending. This Court has established and confirmed that a pending application
before the Court does not constitute a serious issue that could justify a stay (Kante v. Canada
(Minister of Public Safety and Emergency Preparedness),
2007 FC 109, [2007] F.C.J. No. 260 (QL)).The PRRA issue
is addressed in docket IMM-1570-09.
[65]
In
light of the foregoing, the applicant did not discharge his burden of
demonstrating that there is a serious issue. Accordingly, the application
should be dismissed on that ground alone:
[36] I am not persuaded that Mr. Cardoza Quinteros has raised any serious issue
that would warrant the grant of a stay of the removal order. Having failed to meet one of the branches of the tripartite test, this
application for a stay will be dismissed. It is not necessary that I examine
whether the Applicant has met the other two branches of the Toth
tripartite test. (Emphasis added.)
(Quinteros, above).
B. Irreparable harm
[66]
In
the case of Kerrutt v. Canada (Minister of Employment and Immigration)
(1992), 53 F.T.R. 93, 32 A.C.W.S. (3d) 621, the Court defined irreparable
harm as returning a person to a country where his or her safety or life would
be in jeopardy. In the same decision, the Court also found that
normal personal inconvenience or the separation of family members does not
constitute irreparable harm.
[67]
That
decision has been cited repeatedly, in particular, by Madam Justice Sandra Simpson
in Calderon v. Canada (Minister of Citizenship and Immigration)
(1995), 92 F.T.R. 107, [1995] F.C.J. No. 393 (QL), where she stated
the following about the definition of irreparable harm in Kerrutt, above:
[22] In Kerrutt v.
M.E.I. (1992), 53 F.T.R. 93 (F.C.T.D.) Mr. Justice MacKay concluded that, for the
purposes of a stay application, irreparable harm implies the serious
likelihood of jeopardy to an applicant’s life or safety. 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. (Emphasis added.)
(Also, Lewis v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1271, 126 A.C.W.S. (3d)
842 at paragraph 9).
[68]
The
onus is on the applicant to adduce clear evidence regarding the harm he or she
alleges:
[23] The evidence in support of harm must be clear and non-speculative. (John v.
Canada (Minister of Citizenship and Immigration), [1999]
F.C.J. No. 915 (QL); Wade v. Canada (Minister of Citizenship and
Immigration), [1995] F.C.J. No. 579 (QL).)
. . .
[25] Moreover, to demonstrate irreparable harm, the Applicants must demonstrate
that if removed from Canada, they
would suffer irreparable harm between now and the time at which any positive
decision is made on their application for leave and for judicial review.
The Applicants have not done so. (Reddy v. Canada (Minister of Citizenship
and Immigration), [1999] F.C.J. No. 644 (QL); Bandzar v.
Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 772
(QL); Ramirez-Perez v. Canada (Minister of Citizenship and Immigration),
[2000] F.C.J. No. 724 (QL).)
(Adams v. Canada (Minister of
Citizenship and Immigration), 2008 FC 256, [2008] F.C.J. No. 422 (QL)).
[69]
The
applicant has not established that he would suffer irreparable harm as a result
of his removal to the Dominican Republic.
[70]
The
applicant claims that he will have to face his assailant should he be returned
to the Dominican Republic.
[71]
There
is no evidence to support this allegation. The RPD did not find his
story credible, and the PRRA officer, in turn, concluded that the applicant
would not be at risk.
[72]
In
any event, it is settled law that applicants must present clear evidence to
demonstrate the irreparable harm they will supposedly suffer. The harm cannot
be based on conjecture: it implies the serious
likelihood of jeopardy to the applicant’s life or safety (Zabala v. Canada
(Minister of Citizenship and Immigration), 2008 FC 415, 166 A.C.W.S. (3d)
301).
[73]
The
applicant’s memorandum does not set out any harm whatsoever that he might
suffer. He merely states that he will face his alleged agent of persecution. This
non-credible information has already been rejected.
[74]
Accordingly,
this argument has no merit and must be disregarded because there is
no evidence to corroborate the applicant’s allegation:
[32] The onus is on the
applicant to demonstrate, through clear and convincing evidence of irreparable
harm, that the extraordinary remedy of a stay of removal is warranted.
Irreparable harm must constitute more than a series of possibilities and cannot
be simply based on assertions and speculation (Atwal v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 427).
(Petrovych, above).
[75]
Therefore,
no irreparable harm has been made out regarding a non-credible story of
persecution.
[76]
The
applicant submits that his children’s development will be affected by their
return to the Dominican
Republic.
No evidence was led to support this allegation. In addition, the
documents show that the children are in the Dominican Republic.
[77]
Accordingly,
there is no irreparable harm in this regard.
[78]
The
applicant argues that his separation from his wife will cause him irreparable
harm. However, the separation of spouses is part of the normal and inherent consequences
of the applicant’s situation:
[33] Federal Court jurisprudence also establishes that
irreparable harm must be something more than the inherent consequences of
deportation. As Mr. Justice Pelletier stated in Melo v. Canada (Minister
of Citizenship and Immigration), [2000] F.C.J. No. 403:
. . . [I]f 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. (Emphasis added).
(Petrovych, above).
[79]
The
applicant submits that his sponsorship application will be closed once he
leaves Canada. There is no
outstanding sponsorship application involving the applicant. In any event, a
pending sponsorship application does not constitute an impediment to removal (Salazar, above).
[80]
The
applicant claims that his wife is experiencing difficulties relating to her
pregnancy. There is no evidence in the record on this point. The
documents in the applicant’s file (which were not provided to the officer) do
not demonstrate that the pregnancy is high-risk.
[81]
In
fact, the doctor simply states that the due date is June 30, 2009. If it were a
complicated pregnancy, it is reasonable to think that the doctor would have
said so. Nor is there any indication that his wife cannot work. In addition,
the order attached to the record has no name or date, and therefore has no
probative value.
[82]
As
for the document asking the applicant’s wife to go for a screening test for
gestational diabetes, there is nothing to indicate that she had the test. Nor
is there any evidence that she suffers from gestational diabetes. The test is
routine, and all pregnant women must have it.
[83]
Hence,
there is nothing in the record to support the allegation that the applicant’s wife
is experiencing pregnancy complications. Since the allegation is not supported
by any evidence, it cannot establish irreparable harm:
[17] The applicant stated that if
he is removed from Canada his wife could suffer an
abortion if she is deprived of husband’s assistance, which is inconsistent with
the evidence considered in this matter.
[18] First, the evidence filed with
the application is insufficient to establish that the applicant, himself will
suffer irreparable harm if he is removed to Costa Rica.
[19] The better part of the
jurisprudence of this Court, states that the irreparable harm must be personal
to the applicant (Csanyi v. Canada (Minister of Citizenship and
Immigration),
[2000] F.C.J. No. 758 (QL) (T.D.), paragraph 4).
[20] Second, the interview notes
dated January 8 indicate that on that date, the applicant’s wife had not
experienced any complications in two months.
[21] Third, the applicant did not
at any time ask that his removal be deferred based on problems related to his
wife’s pregnancy when he met with officer Cheung, either on January 8
or 22, 2008 (see the affidavit of officer Cheung).
[22] In Tobar v. Canada (Minister of Citizenship and
Immigration),
2002 FCT 399; [2002] F.C.J. No. 500 (QL), Mr. Justice J.
François Lemieux determined:
[12] In this case, the evidence
went to hardship the family would suffer should he be removed. There are many
cases in this Court which hold such evidence is not satisfactory to meet the
irreparable harm test.
[23] In Selliah v. Canada (Minister of Citizenship and
Immigration),
2004 FCA 261, [2004] F.C.J. No. 1200 (QL), the Federal Court of
Appeal determined as follows:
[13] The removal of persons who
have remained in Canada without status will always
disrupt the lives that they have succeeded in building here. . . 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 . . .
[24] In this case, there is no
evidence in the record that would establish the existence of irreparable harm
if the applicant were removed to Costa Rica.
(Castillo, above; also, Patterson, above).
[84]
The
applicant states that removing him to the Dominican Republic before his ALJR
of his PRRA is determined constitutes irreparable harm. However, the Court has
clearly established the contrary:
[66] Finally, the
removal of a person who has an application pending before the Court does not
constitute a serious question or irreparable harm . . . (Emphasis added.)
(Kante, above).
[85]
The
applicant has not discharged his burden of demonstrating that he would suffer
irreparable harm if he were removed to the Dominican Republic.
C.
Balance of convenience
[86]
Absent
a serious issue and irreparable harm, the balance of convenience lies with the
public interest in ensuring that the immigration process under the IRPA is complied
with (Mobley v. Canada (Minister of Citizenship and Immigration),
[1995] F.C.J. No. 65 (QL)). As this Court recently pointed out:
[28] The public interest is to be taken into account when considering the
balance of convenience and weighing the interests of private litigants. The
balance of any inconvenience that the Applicants might suffer as a result of
their removal from Canada does not outweigh the public interest which the
Ministers seek to maintain in the application of the IRPA, specifically, the
interest in executing removal orders as soon as reasonably practicable. (Manitoba
(Attorney General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110,
para. 146; IRPA, ss. 48(2).)
[29] The Federal Court of Appeal has confirmed that the Minister’s obligation
to remove 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.” (Selliah v. Canada (Minister of Citizenship and Immigration), 2004 FCA
261, [2004] F.C.J. No. 1200 (QL), para. 22.)
[30] All of the
Applicants have had the benefit of a RPD hearing and of a PRRA; Atila has also
received a decision on her H&C application, and, had made an application
for leave and for judicial review of her RPD decision. This Court has held in
similar cases that “it is in the public interest, in light of this history, to provide
finality to the process” such that the balance of convenience lies with the
Respondents. (Park Lee v. Canada (M.C.I.), IMM-1122-05 and
IMM-1182-05 (February 28, 2005), by Justice Judith Snider.)
(Adams,
above).
[87] In this case,
the applicant arrived in Canada in 2005 on a visitor’s visa obtained on
the basis of false statements. He asked that his visa be renewed so that he
could continue working. Then, more than a year after arriving in the country,
he chose to seek refugee protection. His application was denied because of his
total lack of credibility and, in the alternative, because the applicant had an
internal flight alternative in his country of origin.
[88] The applicant
commenced an application in Federal Court to dispute this decision but was not successful.
He then filed a PRRA application, which was rejected based on lack of evidence.
VI. Conclusion
[89] The applicant
has failed to demonstrate that he met the criteria for obtaining a stay and, consequently,
this stay motion cannot be granted.
[90]
For
all these reasons, the motion for a stay is dismissed.
JUDGMENT
THE COURT ORDERS that the motion for a stay is dismissed.
“Michel M.J. Shore”
Certified
true translation
Mary
Jo Egan, LLB
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