Date: 20090623
Docket: IMM-2457-09
Citation: 2009
FC 658
Ottawa, Ontario, June
23, 2009
PRESENT: The Honourable Mr.
Justice Orville Frenette
BETWEEN:
BACA MEJIA, Neiby Judith
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
ORDER AND ORDER
[1]
This
is an application for a stay of an order to remove the applicant to the United
States of America (United States) that should have been enforced
at noon on May 28, 2009, but she did not appear at the removal location. An arrest
warrant has been issued against her.
I. Relevant facts
[2]
The
applicant, 31 years of age, is a citizen of Honduras. In 2002, she
went to the United States where she stayed until March 2003, when she returned
to Honduras. In 2003 she
went back to the United States, where she claimed refugee protection, but
then came to Canada in September
2003, claiming refugee status. On October 13, 2003, she gave birth to a child
in Canada.
II. Proceedings
[3]
The
applicant’s refugee claim was denied on December 3, 2004, and, on January 12,
2005, the Federal Court refused to grant leave for an application for judicial
review of this decision.
[4]
In
September 2006, the applicant filed a pre-removal risk assessment application
(PRRA application); it was denied in a decision dated January 11, 2007.
[5]
On
October 11, 2007, the applicant was removed to the United States.
[6]
On
January 8, 2009, she came back to Canada. On April 8, 2009, her
second PRRA application was denied. On May 15, 2009, she filed an application
for judicial review of this last decision.
[7]
On
May 8, 2009, she was summoned to an interview in Niagara Falls, Ontario with a
removal officer, who informed her that she was to be removed from Canada on May 28,
2009, at noon. The applicant asked the officer for additional time since her
son had a medical appointment on June 1, 2009, and a
dentist appointment on June 16, 2009. The officer told her that she needed to
give him written proof of these facts before he could grant her an administrative
stay of the removal order. She did not give such documents to the removal
officer.
[8]
On
May 15, 2009, she filed this application for a stay of the removal order until
her application for leave and judicial review is disposed of (without
indicating to which decision she was referring).
[9]
On
May 28, 2009, the removal officer contacted the applicant to reiterate that she
was scheduled for removal that day at noon. She did not appear at the removal
location but her counsel sent the respondent’s counsel, on May 29, 2009, copies
of the medical and dental documents confirming the dates of the appointments
for the child as well as a date (August 13, 2009) for a surgical procedure. The
same day, the removal officer responded to Ms. Markaki that an arrest warrant had
been issued against her client and that a deferral of the removal was not being
contemplated.
III. Preliminary objection
[10] The
respondent is objecting to the application on the merits because the applicant
violated, with her conduct, the clean hands doctrine and is not entitled to the
relief sought. The respondent maintains that the applicant benefited from all
of the possible avenues in Canada to avoid removal and failed. She was
considered [translation] “not
credible” in her claims.
[11] The applicant
alleges that she did not appear on May 28, 2009, for her removal due to a
misunderstanding or confusion because she believed that the removal date had
been postponed until her son had attended and benefited from the medical-dental
appointments.
[12] The removal
officer, with written proof, contradicts this submission and his credibility has
not been called into question.
[13] Furthermore,
the respondent argues that in 2007, the same scheme was used by the applicant
to delay her removal to the United States. The respondent submits
that this last proceeding was aimed only at setting aside a second PRRA
decision to avoid removal. An arrest warrant against the applicant is outstanding
and the respondent submits that, inter alia, the Court should dismiss
the application for a stay or refuse to hear it. The applicant contests this
argument and offers to leave Canada voluntarily if the application for
judicial review is dismissed.
IV. Analysis
[14] The case law
has held that judicial review proceedings include the authority to not decide
or to dismiss applications that, simply because of the applicant’s conduct, do
not merit the relief sought (Homex Realty and Development Co. v. Wyoming
(Village), [1980] 2 S.C.R. 1011; Canada (Attorney General) v. P.S.A.C.,
[2000] 1 F.C. 146 (T.D.)).
[15] In the
context of an application for a stay of the removal of a person, the Federal
Court has found that when the applicant did not have clean hands before the
Court, the relief sought should not be granted (Wojciechowski v. The
Minister of Citizenship and Immigration (May 6, 2002), IMM-1986-02
(F.C.T.D); Parast v. The Minister of Citizenship and Immigration, 2006 FC
660). In Thanabalasingham v. The Minister of Citizenship and Immigration
(2006), 263 D.L.R. (4th) 51, the Federal Court of Appeal decided that on
the issue of clean hands, the court should strike a balance and decide if,
despite misconduct, the application should be heard on the merits.
[16] In light of
this jurisprudence I find that, in this case, despite the fact that the
applicant was not considered credible, that her actions verge on scheming and that
she is close to abusing her legal remedies, I will still examine the merits of
her allegations.
A. Criteria
for a judicial stay
[17] The Federal
Court of Appeal in Toth v. Canada (M.C.I.) (1988), 86 N.R. 302, established
the three conditions or criteria required to grant a judicial stay suspending
the enforcement of a removal order, namely: 1) there is a serious issue to be
tried; 2) the applicant would suffer serious and irreparable harm if no stay
was granted; 3) the balance of convenience favours the stay order.
B. The
serious issue
[18] The applicant
must demonstrate the presence of one or more serious issues that have
reasonable chances of succeeding in the underlying proceeding. The standard for
what constitutes a serious issue is generally that of an issue that is not
frivolous or vexatious (see Sowkey v. The Minister of Citizenship and
Immigration, 2004 FC 67; Fabian v. Le ministre de la Sécurité publique
et de la protection civile, 2009 CF 425, at paragraphs 38 to 41). However,
the word “serious” requires a little bit more; the merits must be examined to
ensure that the issue has a chance of succeeding (see Wang v. Canada
(M.C.I.), [2001] 3 F.C. 682, at paragraph 11).
[19] The applicant
raises five issues. First, the PRRA officer committed an error of law by
refusing to consider the documents written in Spanish because they had not been
translated. The respondent replies that the instructions given by the officer
to the applicant, and the forms, clearly indicated that it was up to her to
provide the documents on which she relied and a translation in either English
or French. This was the second PRRA application and multiple postponements had
been initiated by the applicant; this requirement was clear.
[20] In her application
on humanitarian and compassionate grounds she alleged that she had learned Canada’s two
official languages. It was incumbent upon the applicant to provide the officer
with the required documents and an acceptable translation. She did not do this.
[21] In Pareja
v. Le ministre de la Citoyenneté et de l’Immigration, 2008 CF 1333, it was
decided that the PRRA officer had not committed an error by not having considered
the documents that were written in Spanish and not translated. Consequently,
the officer cannot be criticized for this. The officer was also not obligated
to remind the applicant of this obligation.
[22] Second, the
applicant alleges that the officer should have, under the circumstances, summoned
her to an interview. The respondent refers to the conditions listed in section
167 of the Immigration and Refugee Protection
Regulations, SOR/2002-227, conditions that the
applicant did not establish. Even if the conditions had been met, it is only in
very exceptional circumstances that an interview is obligatory (see Kaba v. The
Minister of Citizenship and Immigration, 2006 FC 1113 and Aoutlev v. The
Minister of Citizenship and Immigration et al., 2007 FC 111).
[23] Third, the
applicant argues that the officer erred in not considering the complaint report
made to a New
York
police officer in 2008. This report was written in Spanish without any
translation; therefore, the officer was justified in giving it little probative
value.
[24] Fourth, the
applicant criticizes the officer for having erred when he decided that she
could seek protection in Honduras. The respondent replies
that the officer analyzed in great detail the issue of protection of women who
are victims of conjugal violence in Honduras and that, even if not perfect, it
was adequate. The applicant was considered not credible. She would be removed
to the United
States,
where she came from, which is a democratic state. Therefore, it must be
concluded that the officer did not commit an error on this point.
[25] Fifth, the
applicant argues that she submitted [translation]
“new evidence” on the recent situation in Honduras, which the
officer disregarded. This allegation cannot be upheld because the conditions
for filing new evidence were not met (Raza v. The Minister of Citizenship
and Immigration, 2007 FCA 385).
C. Irreparable
harm
[26] In summary, the
applicant argues that removal would cause irreparable harm because her son
requires medical care and a surgical procedure that she cannot afford in the United
States.
The respondent replies that the child, being a Canadian citizen who is not subject
to removal, can receive medical care in Canada and that his
surgery is also not urgent. The applicant can leave him with relatives or
friends in Canada for this
care and he can come back for the required surgical procedure. The respondent
maintains that these economic considerations do not justify granting the
desired stay. The applicant’s argument on this point does not stand up to
analysis.
[27] The applicant
argues that the officer did not consider her fears following threats made by
her ex-boyfriend and the father of her child. The respondent explains that the
officer did not have any convincing evidence of these allegations. Under these
circumstances, this complaint cannot be accepted.
[28] Finally, the
removal to the United States does not constitute in itself irreparable
harm (see Radji v. The Minister of Citizenship and Immigration, 2007 FC
100).
D. The
balance of convenience
[29] According to
subsection 48(2) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27, the respondent
is obligated to enforce the removal orders as soon as practicable. Given the
factual evidence, the balance of convenience favours the respondent.
V. Conclusion
[30] Since the
essential conditions justifying a stay have not been met, the application must
be dismissed.
ORDER
The application for a stay of an
order of removal to the United States of America, which
should have been enforced on May 28, 2009, is dismissed.
“Orville
Frenette”
Certified
true translation
Janine
Anderson, Translator
Email this Content