Date: 20071227
Docket: IMM-5399-07
Citation: 2007 FC 1369
Ottawa, Ontario, December 27, 2007
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
hoang huy bui
Applicant
and
the minister of
citizenship
and immigration
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
OVERVIEW
[1]
It
was clearly not the intent of Parliament to allow all negative Pre-Removal
Risk Assessment (PRRA) recipients to remain in Canada, pending the
outcome of any litigation related to their PRRA decisions. Parliament chose to
provide a statutory stay of removal pending the outcome of an application for
leave of a negative refugee decision by the Refugee Protection Division (RPD).
Parliament further envisioned statutory stays in certain specified
circumstances related to PRRAs, as set out in Section 232 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (Regulations), none of
which included applications for leave challenging negative PRRA decisions.
[2]
Parliament
clearly intended that persons whose PRRA applications had been rejected could
be removed. This is also consistent with section 48 of the Immigration and Refugee
Protection Act,
S.C. 2001, c. 27 (IRPA), which provides that the Minister is obligated
to effect valid removal orders as soon as practically possible. Any other
interpretation would place the rights of an unsuccessful PRRA applicant, ahead
of the legal obligation on the Minister, rights and obligations which
Parliament has intentionally balanced through the statutory provisions in the IRPA.
[3]
This Court and
the Court of Appeal routinely dismiss stays where there are outstanding
applications for leave and for judicial review or appeals, including
applications or appeals of negative PRRAs. (Selliah v. Canada (Minister of Citizenship and Immigration),
2004 FCA 261, [2004] F.C.J. No. 1200 (F.C.A.) (QL); El Ouardi v.
Canda (Solicitor General), 2005 FCA 42, [2005] F.C.J. No. 189 (QL); Sivagnanansuntharam v. Canada (M.C.I.), (February 16, 2004, Docket A-384-03)
(F.C.A.); Tesoro v. Canada (Minister of Citizenship
and Immigration), 2005 FCA 148 (F.C.A.), [2005] F.C.J.
No. 698 (QL).)
INTRODUCTION
[4]
This
is a motion for an order staying the execution of a deportation to Hanoi on December 28,
2007, issued against the Applicant.
JUDICIAL PROCEDURE
[5]
The
Applicant
arrived in Canada on a merchant vessel in
May 2005. In November 2005, he initiated a refugee claim which was denied in
October 2006 based primarily on his lack of credibility and reavailment. He
challenged that decision, but leave was denied in February 2007. In the meantime,
in December 2006, the Applicant married a Canadian citizen. In July 2007, the
Applicant exercised his right and sought a PRRA which was rejected on October
31, 2007.
[6]
Despite
all of the discussion in the Applicant’s materials with regard to his being
duped by Mr. Thomas Pham on a Spouse in Canada Class application, who allegedly
purported to have credentials that he apparently did not have, this case really
concerns a negative PRRA decision. The Applicant does not find any problem with
the final determination or the rationale used to substantiate it.
FACTS
[7]
The
Applicant, a national of Vietnam and a seaman, arrived in Canada at Point Tupper, Nova Scotia, on May
28, 2005, where he deserted the ship.
[8]
The
Applicant’s claim for Convention refugee status was initiated, on November 15,
2005, which was rejected by the RPD, on October 12, 2006 on the basis of lack
of credibility and reavailment of the Applicant. He challenged that decision at
the Federal Court, but leave was denied, on February 7, 2007.
[9]
The
Applicant availed himself of the opportunity to make an application for a PRRA,
on July 27, 2007.
[10]
On
October 31, 2007, the Applicant was found not to be at risk in his PRRA.
ISSUE
[11]
Has
the Applicant met the tri-partite test for warranting a stay of removal?
ANALYSIS
The Test for granting a stay
[12]
The
Supreme Court of Canada has established a tri-partite conjunctive test for
determining whether interlocutory injunctions should be granted pending a
determination of a case on its merits, namely: (i) whether there is a serious
issue to be tried; (ii) whether the litigant who seeks the interlocutory
injunction would, unless the injunction is granted, suffer irreparable harm; and,
(iii) in whose favour the balance of convenience lies (specifically which of the
two parties will suffer the greater harm from the granting or refusal of an
interlocutory injunction pending a decision on the merits). (R.J.R.-MacDonald
Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311.)
SERIOUS ISSUE
[13]
The
PRRA Officer’s principal objective is to assess the weight of the evidence. Justice Luc Martineau
confirmed in Rajz v. Canada (M.C.I.), Doc. No. IMM-5263-03 (15 July
2003) “that the PRRA officer has sole jurisdiction over the facts. The Court
should not enter into re-weighing of evidence.” (Gonzalez v. Canada (M.C.I.), Doc. No. IMM-3659-03
(30 May 2003); Mekolli v. Canada (M.C.I.), Doc. IMM-4974-03 (9 September 2003); Karaman
v. Canada (M.C.I.), Doc. IMM-6676-03 (9
September 2003).)
[14]
Significant
reference is made by the PRRA officer to the RPD decision wherein the officer
stated:
The
RPD provided a comprehensive analysis of the applicant’s testimony given at his
refugee hearing on 02 August 2006. The RPD noted the following:
In
the case of Sheik, the Federal Court held that a general finding of a lack of
credibility on the part of the applicant may conceivably extend to all relevant
evidence emanating from his testimony. The gravity of the inconsistencies and
implausibilities in the absence of a reasonable explanation, coupled with the
element of delay in claiming refugee status in Canada, as well as re-availment
in such that it leads the panel to find that this lack of credibility extends
to all relevant evidence emanating from the claimant and renders his entire
testimony not credible.
The
panel on a balance of probabilities, that the claimant has fabricated the
allegations in the narrative to extend a refugee claim. His lack of credibility
has undermined his subjective fear.
[15]
The
review of the case law confirms that a PRRA officer’s decision attracts
significant deference. The determination of risk on return to a particular
country is a “fact-driven inquiry” and this determination attracts considerable
deference. As the Supreme Court stated in Ahani v. Canada (Minister of Citizenship
and Immigration),
[2002] 1 S.C.R. 72:
[17] … we conclude that the
court may intervene only if the Minister's decision is not supported on the
evidence, or fails to consider the appropriate factors. The reviewing court
should also recognize that the nature of the inquiry may limit the evidence
required. While the issue of deportation to risk of torture engages s. 7 of the
Charter and hence possesses a constitutional dimension, the Minister's decision
is largely fact-based. The inquiry into whether Ahani faces a substantial risk
of torture involves consideration of the human rights record of the home state,
the personal risk faced by the claimant, any assurances that the claimant will
not be tortured and their worth and, in that respect, the ability of the home
state to control its own security forces, and more. Such issues are largely
outside the realm of expertise of reviewing courts and possess a negligible
legal dimension. Considerable deference is therefore required. (Emphasis
added.)
(Reference is also made to Suresh v. Canada (Minister of
Citizenship and Immigration), [2002] 1 S.C.R. 3, para. 39.)
[16]
The
Applicant asserts in his affidavit and in the Notice of Motion that a PRRA
application on his behalf was completed in “consultation with” or “submitted
by” Mr. Pham. Mr. Pham apparently is not authorized to be an immigration
representative and the Applicant claims that he was duped by Mr. Pham into
retaining his services. Consequently, the Applicant argues that the stay should
be granted so that another PRRA application can be filed.
[17]
There
is no requirement that PRRA applicants must have legal counsel to prepare their
documents. In any event, with regard to the Applicant’s argument, the
jurisprudence is consistent that, generally, a person is bound by the actions
of their counsel whether the counsel is a lawyer or not; therefore, the
Applicant’s complaints are without merit. In Cove v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 266, [2001] F.C.J. No. 482 (QL),
Justice Denis Pelletier held:
[6] It is a fact that, generally
speaking, applicants will be held to the consequences of their choice of
advisor even when that advisor is a lawyer. Madam Justice Reed put it this way
in Williams v. Canada (Minister of Employment and Immigration), [1994]
F.C.J No. 258, (1994) 74 F.T.R. 34:
[20] ...The general rule, in the courts, is that
a client is considered to have authorized and be bound by the representations
made on his or her behalf by counsel. The system cannot operate if this is not
so. In my view, to grant a stay in circumstances where the only prejudice the
applicant can demonstrate is that he may or may not have grounds for judicial
review, but does not know because his former counsel did not properly prepare
his case, would create an unworkable precedent. It is the professional
accreditation bodies, such as the Law Society, not the courts, which have the
mandate to regulate the professional performance of their members.
…
[9] If the applicant were in these straits because of her lawyer's
error, that error would be held against her. Why should the errors or her
consultants not be held against her? To accept this argument would create a
positive incentive for individuals to use consultants in preference to lawyers
so that if things went badly, relief could be obtained by blaming the
inadequacy of the consultant. This is not conducive to a rational use of legal
and judicial resources.
[10] If individuals are going to
hold themselves out as skilled in immigration matters and, as is increasingly
the case, adopt the designation of "counsel", then they will be held
to the same standard as those who customarily appear before the Court. The
consequences to their clients of non-performance will be the same as it is for
clients of the immigration bar. There is no reason why the Court should shelter
consultants from negligence claims by overlooking their mistakes. Members of
the immigration bar pay large liability insurance premiums for coverage which
is subject to being called upon every time a court refuses to gloss over their
mistakes. To apply a different standard to consultants is to subsidize their
competition with the immigration bar.
[11] It is not for this Court to
decide who clients can consult about their immigration problems. If there were
not a need and a demand for immigration consultants, they would not exist. But
it is equally not for this Court to disadvantage its own officers by applying a
different standard to those who would displace them.
[18]
There
is evidence to suggest that the Applicant is not being forthcoming concerning
his relationship with Mr. Pham. The Removals Officer indicates that she met the
Applicant and Mr. Pham on three occasions and that, when she inquired
about their relationship, she was advised that Mr. Pham was a friend who was
acting as the Applicant’s interpreter. Furthermore, the allegation that Mr.
Pham did not submit the Applicant’s Spouse in Canada class claim is undermined
by the Officer’s entry in her Notes to File where she indicates that the
Applicant stated that he was awaiting the PRRA results before submitting a
spousal sponsorship. Thus, the Applicant’s credibility on this issue is in
question. (Affidavit of Lisa Levy, sworn December 24, 2007; Notes to File
of Removals Officer, Kristen Gale; Officer’s Statutory Declaration, dated
December 24, 2007, attached to the affidavit of Lisa Levy as Exhibit “A”.)
[19]
The
Court is in receipt of information from the Respondent based on notes of
Enforcement Officer V. Ducas that Mr. Bui has attended the Greater Toronto
Enforcement Centre (GTEC), accompanied by a Mr. Pham on the following dates:
27NOV2007, 13DEC2007, 14DEC2007. Mr. Bui had also advised that Mr. Pam was a
friend and interpreter. Any potential investigations into this matter, do not
have any effect on Mr. Bui’s removal order or his direction to report for
removal. The Court is not satisfied that a deferral of the execution of removal
order is appropriate in the circumstances of this case.
IRREPARABLE HARM
[20]
The
Applicant asserts that irreparable harm would result if he was removed because
he would be unable to recoup the monies improperly taken from him by Mr. Pham.
[21]
If
there is any legal action that the Applicant feels should be taken against Mr.
Pham with regard to monies that were allegedly taken improperly, the
Applicant’s spouse is in a position to direct whatever legal action is
necessary. The Applicant’s physical presence in Canada is not required.
[22]
It
is unsubstantiated, on the basis of all the evidence presented, how the
Applicant’s allegations of wrong doing on the part of a specific individual in
the Applicant’s PRRA would, in any case, in regard to the Applicant’s stay
application, demonstrate a ground of irreparable harm.
[23]
The
Applicant suggests that his underlying application for judicial review will be
rendered nugatory if a stay is not granted. This is not the case.
[24]
As
Justice James O’Reilly found in Kim v. Canada (Minister of Citizenship and
Immigration),
2003 FCT 321, [2003] F.C.J. No. 452 (QL): “…nothing
in the Act or the Rules that would interfere with the entitlement of a PRRA
applicant, who has been removed from Canada and who is successful on judicial
review, to have that application reconsidered.” Further, as Justice Martineau decided in Akyol
v. Canada (Minister of
Citizenship and Immigration), 2003 FC 931, [2003] F.C.J. No. 452 (QL):
[11] Sixth, the
deportation of individuals while they have outstanding leave applications
and/or other litigation before the Court, is not a serious issue nor does it
constitute irreparable harm: Ward v. Canada (Minister of Citizenship and
Immigration), [1997]
F.C.J. No. 86 (T.D.) at para. 12; and Owusu
v. Canada (Minister of Citizenship and Immigration), [1995]
F.C.J. No. 1166 (T.D.). I also note that
the application for leave and judicial review will continue regardless of where
the applicants are located, and that they can provide instructions to counsel
as to how to proceed with the litigation from the U.S. or, should they end up
there, Turkey…
(Reference is also made to Ryan
v. Canada (Minister of Citizenship and
Immigration), 2001 FCT 1413, [2001] F.C.J. No. 1939 (QL),
para. 8.)
[25]
This Court and
the Court of Appeal routinely dismiss stays where there are outstanding
applications for leave and for judicial review or appeals, including
applications or appeals of negative PRRAs. (Selliah, above; El Ouardi, above; Sivagnanansuntharam,
above; Tesoro, above.)
[26]
The
proper, persuasive, and authoritative approach is the one articulated by the
Federal Court of Appeal that has held that removing an applicant from Canada while his appeal of his
negative PRRA is pending, does not render his/her rights nugatory. In Selliah,
above, Justice John Maxwell Evans stated:
[20] Since the appeal can
be ably conducted by experienced counsel in the absence of the appellants and
since, if the appeal is successful, the appellants will probably be permitted
to return to Canada at public expense, I cannot accept that removal renders their
right of appeal nugatory.
[27]
Further,
Justice Snider considered but rejected a similar argument to the one advanced
by the Applicant and ultimately concluded that the application is not
rendered nugatory by removal. Justice Snider relied on Kim, above, and
on the Court of Appeal’s decision in Selliah, and noted in Nalliah v. Canada (Solicitor
General),
2004 FC 1649, [2004] F.C.J. No. 2005 (QL):
[30] The second branch of Mr. Nalliah's
argument is that the loss of the right to continue the litigation constitutes
irreparable harm. Contrary to these submissions, if the injunction is refused,
their right to an effective remedy will not be rendered nugatory. As Mr.
Justice O'Reilly stated in Kim v. Canada (Minister of
Citizenship and Immigration), [2003]
F.C.J. No. 452, 2003 FCT 321, at para. 9:
"[n]othing in the Act or the Regulations interferes with the entitlement
of a PRRA Applicant, who has been removed from Canada and who is successful on
judicial review, to have her application reconsidered".
[31] In Selliah v. Canada (Minister of
Citizenship and Immigration) [2004]
F.C.J. No. 1200, at para. 20, (F.C.A.)
(QL), Justice Evans of the Court of Appeal stated:
Since the appeal can be ably conducted by
experienced counsel in the absence of the appellants and since, if the appeal
is successful, the appellants will probably be permitted to return to Canada at public expense, I
cannot accept that removal renders their right of appeal nugatory.
[32] The cases of Suresh, supra and Resulaj,
supra referred to by Mr. Nalliah may be distinguished on the basis that, in
both of those cases, there was significant evidence supporting a personalized
risk. From a review of the jurisprudence, I conclude that irreparable harm
cannot be solely founded on difficulty in pursuing legal rights of challenge
once removed from Canada.
[28]
In
addition, it was clearly not the intent of Parliament to allow all
negative PRRA recipients to remain in Canada, pending the outcome of
any litigation related to their PRRA decisions. Parliament chose to provide a
statutory stay of removal pending the outcome of an application for leave of a
negative refugee decision by the RPD. Parliament further envisioned statutory
stays in certain specified circumstances related to PRRAs, as set out in Section
232 of the Regulations, none of which included applications for leave
challenging negative PRRA decisions. (Regulations, sections 231 and 232.)
[29]
Parliament
clearly intended that persons whose PRRA applications had been rejected could
be removed. This is also consistent with section 48 of the IRPA, which provides
that the Minister is obligated to effect valid removal orders as soon as
practically possible. Any other interpretation would place the rights of an
unsuccessful PRRA applicant, ahead of the legal obligation on the Minister,
rights and obligations which Parliament has intentionally balanced through the
statutory provisions in the IRPA. Justice Snider acknowledged this in Nalliah,
above.
[30]
The
Applicant has failed to establish demonstrable proof of irreparable harm.
BALANCE OF CONVENIENCE
[31]
The
public interest is to be taken into account in consideration of the balance of
convenience and weighed together with the interests of private litigants. (Manitoba
(Attorney General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110.)
[32]
In Dugonitsch
v. Canada (Minister of Employment
and Immigration),
1992 53 F.T.R. 314, [1992] F.C.J. No. 320 (F.C.T.D.) (QL), Justice Andrew MacKay
sets out the considerations pertinent to assessing balance of convenience:
Absent evidence of irreparable harm, it is
strictly speaking unnecessary to consider the question of the balance of
convenience. Nevertheless, it is useful to recall that in discussing the test
for a stay or an interlocutory injunction in the Metropolitan Stores
case Mr. Justice Beetz stressed the importance of giving appropriate weight to
the public interest in a case where a stay is sought against a body acting
under public statutes and regulations which have not yet been determined to be
invalid or inapplicable to the case at hand. That public interest supports the
maintenance of statutory programs and the efforts of those responsible for
carrying them out. Only in exceptional cases will the individual's interest,
which on the evidence is likely to suffer irreparable harm, outweigh the public
interest.
(Reference is also made to Aquila v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 36 (F.C.T.D.) (QL).)
[33]
Furthermore,
the Federal Court of Appeal in Cuskic v. Canada (Minister of Citizenship and
Immigration), [2001] 2 F.C. 3 (C.A.), [2001] F.C.J. No. 1631 (QL), a case
decided under the Immigration Act, held that the Minister has a duty in
seeing the expeditious and effective execution of a removal order. Similarly,
section 48 of the IRPA, imposes upon the Respondent a general duty to execute a
removal order as quickly as possible by requiring that it be done as soon as
reasonably practicable.
[34]
The
Applicant has had the benefit of a refugee claim and a risk assessment in Canada. He has had a negative
RPD decision based on lack of credibility and reavailment that was upheld by
this Court. The Applicant has also had the full and fair benefit of the law to
have his risk assessed.
[35]
These
factors, taken all together, tilt the balance in favour of the Minister. The
balance of any inconvenience which the Applicant may suffer as a result of his
removal from Canada does not outweigh the public interest which the Respondent
seeks to maintain in the application of the IRPA, specifically the interest in
executing deportation orders as soon as reasonably practicable.
CONCLUSION
[36]
For
the reasons listed above, the Applicant’s motion to stay the execution of the
removal order is dismissed.
JUDGMENT
THIS COURT ORDERS that the Applicant’s motion to stay the execution of the removal
order be dismissed.
“Michel M.J. Shore”
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