Date: 20090528
Docket: IMM-4161-08
Citation: 2009 FC 550
Ottawa, Ontario, this 28th day of May 2009
PRESENT: The Honourable Orville Frenette
BETWEEN:
Erius
ALLIU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1]
This
is an application to obtain leave to commence a judicial review application
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (the “Act”) of a decision by a Pre-Removal Risk
Assessment (“PRRA”) officer, rendered on September 4, 2008, whereby she
determined that the applicant did not meet the criteria to be granted permanent
residence on humanitarian and compassionate (“H&C”) grounds.
[2]
The
undersigned granted a stay of execution of a deportation order of the applicant
on November 12, 2008. In the circumstances, I believe it is necessary to write
the reasons why I am refusing leave.
The Background Facts
[3]
The
applicant came to Canada in 2002, at age 18, seeking refugee protection
alleging that as a member of the Democratic Party (“DP”) in Albania, he was
targeted.
[4]
The
Immigration and Refugee Board rejected his claim in 2003, based upon concerns
about his credibility and because he had not established he had been an active
member of the DP. An application for leave and judicial review of this decision
was denied in December 2003.
[5]
On
April 19, 2004, the applicant submitted an application for permanent
residence in Canada based upon
H&C grounds. That application was dismissed on September 4, 2008. He was
ordered deported to Albania on May 16, 2008 but an administrative deferral
was granted for a period of three months.
[6]
The
applicant had filed for a PRRA in 2007; this application was dismissed on April
9, 2008. There was no application for judicial review of this decision.
The Stay Decision
[7]
The
undersigned granted a stay of the deportation order because the officer had not
discussed or disposed of one of the two new issues raised i.e. the
personalized risk faced by the applicant if returned to Albania concerning
compulsory military service.
The Test for Leave
Authorizing Judicial Review
[8]
As
enunciated in subsection 72(1) of the Act, judicial review commences when leave
is granted. The only test to consider is whether the applicant raised a “fairly
arguable case” on a serious question to be determined (Bains v. Minister of
Employment and Immigration (1990), 47 Admin. L.R. 317, 109 N.R. 239,
paragraph 1 (F.C.A.)).
[9]
The
applicant relies upon my findings at the stay application level to argue he has
met the test for leave (Alliu v. Minister of Citizenship and Immigration,
2008 FC 1256).
[10]
The
respondent pleads that the tests on an application for a stay and for leave,
are not identical. The test for a stay is whether the “serious issue” raised is
“not frivolous or vexatious”; a test lower than the one at leave level i.e.
“a fairly arguable case” (Bains, supra; Brown v. Minister of
Citizenship and Immigration, 2006 FC 1250, paragraph 5; Streanga v.
Minister of Citizenship and Immigration, 2007 FC 792, paragraphs 7 and 9).
[11]
The
applicant submits he has met the test for the leave application. The respondent
argues that the applicant had not adduced any “supporting evidence of any
type”, to support the military evidence issue. The respondent also pleads that
this issue was dealt with in the PRRA decision from which there was no judicial
review sought.
Analysis
[12]
The
facts and a perusal of the PRRA decision show that the main issue raised by the
applicant i.e. the military evidence one had been dealt with.
Furthermore, the applicant did not provide any evidence to support his claim on
this issue. The record reveals that the applicant has exhausted all recourse
avenues since 2002 in order to remain in Canada.
[13]
His
first H&C application was dismissed in 2008. A second H&C application
can be pursued outside Canada. I must therefore conclude that the
applicant has not satisfied the test of a serious question raised by a fairly
arguable case.
Mootness
[14]
Very
recently in the case of Baron v. Minister of Citizenship and Immigration,
2009 FCA 81, the Federal Court of Appeal dismissed an appeal against a decision
of Justice Eleanor Dawson who had refused leave after a stay order because the
removal date having been past, the issue having become moot because there was
no “live controversy” to be determined. In appeal, Justice Pierre Blais wrote:
[87] H&C applications are not intended to
obstruct a valid removal order. . . .
[88] In
the appellants’ case, the H&C application is still pending. It is my view
that this still does not prevent their removal. . . .
[15]
The
facts in that case bear resemblance to the ones in the present case. The Baron
Court of Appeal decision was rendered on March 13, 2009 i.e. after my stay
decision of November 12, 2008. The conclusion reached in Baron must be
followed in the present case. See also Chetaru v. Minister of Public Safety
and Emergency Preparedness, 2009 FC 436.
[16]
The
applicant had also asked this Court to “order that the respondent process the
application for landing within Canada”. I could avoid answering this question
but I choose to do so. The respondent contests this demand submitting that the
Court does not possess the power or jurisdiction to grant a H&C application
without “due process”. In my view, the Court possesses the power under
subsection 18.1(3) of the Federal Courts Act, R.S.C. 1985, c. F-7, to
issue orders/directives it considers appropriate in the circumstances of the
case. Furthermore, according to the jurisprudence, the Federal Court possesses
an inherent power in order to assure the objectives and the goals of the
legislation involved are attained (Canada (Human Rights Commission) v.
Canadian Liberty Net, [1998] 1 S.C.R. 626; Ali
v. Canada (Minister of Employment and Immigration), [1994] 3 F.C. 73
(T.D.); Lazareva v. Minister of Citizenship and Immigration, 2004 FC 1372).
[17]
However
the factual basis in the present case does not justify the issuance of such an
order in this matter.
[18]
For
all of these reasons the application for leave is denied.
ORDER
THIS COURT
ORDERS THAT:
The application
for leave and for judicial review of the decision of a Pre-Removal Risk
Assessment officer, rendered on September 4, 2008, whereby she determined that
the applicant did not meet the criteria to be granted permanent residence on
humanitarian and compassionate grounds, is dismissed.
“Orville
Frenette”
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