Date: 20110525
Docket: IMM‑3266‑11
Citation: 2011 FC 607
Ottawa, Ontario, May 25, 2011
PRESENT: The Honourable Mr. Justice
Shore
BETWEEN:
|
|
MBAYE IBRAHIMA
|
|
|
|
Applicant
|
|
and
|
|
|
MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
|
|
|
|
Respondent
|
REASONS FOR
ORDER AND ORDER
II. Preamble
[1]
Clearly, the applicant
did not submit any evidence that could have served as justification for
the removal officer to exercise his discretion. He
merely alleges that the officer [translation]
“should have deferred the removal because of the particular circumstances of
this case” (Motion Record (MR) at page 21, paragraph 35).
[2]
To
interpret and follow the Immigration and Refugee Protection Act,
SC 2001, c 27 (IRPA), in a logical manner, nothing short of complete
psychological or physical inability to act for reasons arising not out of the
country of origin of the person concerned but out of a situation in Canada
(examples: abduction or detention, but not hospitalization or convalescence
because hospital and medical authorities have information on the individual’s
status, unless the individual is in a coma or has amnesia proven by medical
assessment) justifies a claimant’s having remained illegally in Canada for more
than three years without having tried to regularize his or her situation in any
way (see paragraph 20(1)(a) and, in this case, more particularly,
no exemption is specified in the general provision set out under
paragraph 20(1)(b) of the IRPA).
[3]
Indeed,
when a person reports for a “pre‑removal interview”, and has not filed an
application in the spouse or common‑law partner in Canada class, that
person cannot be granted an administrative stay of removal (Duran v Canada
(Minister of Public Safety and Emergency Preparedness), 2007 FC 738 at
paragraph 29).
[4]
This
application aims to obtain the same relief as may be obtained by an application
for judicial review. As stated in Wang v. Canada (Minister of Citizenship and
Immigration), 2001 FCT 148, [2001] 3 FC 682, where the judge applied the
decision in RJR‑MacDonald Inc. v Canada (Attorney General), [1994]
1 SCR 311 (paragraph 44), this Court must closely examine the merits of
the underlying application in conducting the first test, that is, of a serious
issue to be tried.
II. Introduction
[5]
The
applicant, a citizen of Senegal, came to Canada as a student in
January 2006. His student permit expired in July 2007, but he stayed
in Canada illegally.
[6]
After
having been arrested and informed of his removal, he married a Canadian citizen
and filed a sponsorship application. The applicant’s removal is scheduled for
May 26, 2011, at 10 a.m.
[7]
The officer
responsible for the removal had no valid reason to defer it. The Court agrees
completely with the respondent’s factual and legal statements. The applicant had the onus of presenting evidence to
justify deferring the removal, but he failed to do so.
III. Preliminary observation
The decision contested by way of the application for leave
and for
judicial review is not clearly presented
[8]
The
applicant states in his application for leave and for judicial review (ALJR)
that the decision in respect of which judicial review is sought is the [translation] “decision made on
May 10, 2011, by Enforcement Officer Michel Renaud”, from whom the
“applicant received the decision written on May 10, 2011”.
[9]
This
decision is in fact a call‑in letter dated May 10, 2011, delivered
to the applicant in person, ordering him to report to the airport on
May 26, 2011, at 10 a.m., for the enforcement of the removal order by
the Canada Border Services Agency (CBSA).
[10]
The
exclusion order, which prompted the call‑in letter, was in fact made on
March 3, 2011.
[11]
The
applicant filed an ALJR against this order on April 8, 2011, the
respondent replied on May 6, 2011, and this Court has not yet ruled on
that application.
[12]
Since the
applicant’s Motion Record only concerned the decision made on May 10,
2011, this Court’s understanding is that the applicant is contesting the
officer’s refusal to defer the removal.
IV. Facts
[13]
The
applicant, Ibrahima Mbaye, a citizen of Senegal, was allowed into Canada on
January 12, 2006, on a student visa.
[14]
He was
issued a student permit, valid until January 1, 2007.
[15]
He twice
applied to the Case Processing Centre in Vegreville for an extension of his
student visa, which was extended to July 31, 2007.
[16]
The
applicant did not leave Canada on or before July 31, 2007, staying in
Canada beyond the authorized period.
[17]
On
March 3, 2011, CBSA officers arrested the applicant at his home, and an
exclusion order was made against him because he was without status.
[18]
The
applicant was detained for his removal.
[19]
On
March 9, 2011, the applicant filed an ALJR against the exclusion order
(IMM‑1535‑11) and an ALJR against the declaration of no intent to
apply for a Pre‑removal Risk Assessment (PRRA) (IMM‑1534‑11)
(related files).
[20]
On
March 14, 2011, the applicant was released on certain conditions,
including a $4,000 deposit.
[21]
The
applicant allegedly married a Canadian citizen and, on April 11, 2011,
filed an application for permanent residence in the spouse or common‑law
partner in Canada class (sponsorship application).
[22]
On
April 18, 2011, during his meeting with the officer to set the date for
his removal, the applicant stated that he would leave Canada and requested that
his removal be scheduled to take place in four weeks.
[23]
The officer
agreed to this request and set the removal for the week of May 16, 2011.
[24]
During this
meeting, the applicant did not tell the officer that he was allegedly married,
that he had filed a sponsorship application or that he feared returning to
Senegal.
[25]
On
May 10, 2011, the applicant was officially informed that his removal was
scheduled for May 26, 2011.
[26]
During this
meeting, the applicant informed the officer that he had filed a sponsorship
application.
[27]
The officer
informed the applicant that his filing of that application would not stay his
removal on May 26.
[28]
The
applicant did not ask the officer to stay his removal for another reason.
[29]
Therefore,
according to the applicant, the officer refused an administrative deferral of
his removal by applying the Public Policy Under 25(1) of IRPA to
Facilitate Processing in accordance with the Regulations of the Spouse or
Common‑law Partner in Canada Class (Public Policy). This decision is
now the subject of the ALJR to which this motion is attached.
V. Analysis
[30]
To assess
the merits of the motion for a stay, this Court must determine whether the
applicant has met the tests laid down in the Federal Court of Appeal’s decision
in Toth v Canada (Minister of Employment and Immigration) (1988), 86 NR 302, 11 ACWS 3d 440 (FCA):
A.
there is a serious
issue to be tried;
B.
the applicant will
suffer irreparable harm; and
C.
the weighing of the
balance of convenience.
[31]
These three
tests must be met in order for this Court to allow the stay application. If any one of
the tests is not met, this Court cannot grant the stay.
[32]
In this
case, the applicant is applying for a temporary stay of enforcement of the
removal order made against him, and the Court’s order will be equivalent to
this stay of enforcement.
A. Serious issue
[33]
The applicant has not
established that there is a serious issue to be tried by this Court.
[34]
The
applicant must show that he has a reasonable chance of succeeding in his main
proceeding, that is, his ALJR of the removal officer’s decision.
The applicant has not been
granted an administrative deferral.
[35]
The
applicant remained in Canada, without legal status, from July 31, 2007, to
March 3, 2011, the date on which he was arrested by the CBSA and an
exclusion order was made against him.
[36]
The
applicant admits having stayed in Canada beyond the authorized stay.
[37]
It was only
after having been informed of his removal that the applicant filed an
application for permanent residence in the spouse or common‑law partner
in Canada class. In fact, the application was filed on April 11, 2011,
one month after the exclusion order was made.
[38]
The
conclusion that may be reached, from reading page 10 of the Public Policy,
is that it does not apply in this case because the applicant was “removal
ready” when he filed his application in the spouse or common‑law partner
in Canada class.
[39]
As of the
time that the exclusion order was made against the applicant, his removal was
imminent, as provided by section 48 of the IRPA:
|
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.
[Emphasis added.]
|
[40]
Without
these limiting criteria, a person could make application upon application and
thus avoid ever being removed.
That is not the purpose of the policy relied on by
the applicant.
The applicant has not shown that his previous
consultants were incompetent
[41]
The
applicant alleges that he was improperly advised by various immigration
consultants and that he did not know he could file a common‑law partner
sponsorship application, incorrectly believing that he had to get married.
[42]
It should
be noted that the applicant has not provided the contact information of his
previous consultants, is not adding his alleged consultants as third parties to
these proceedings and has not adduced any evidence showing that a complaint was
filed against those consultants.
[43]
The
applicant cannot allege having been improperly advised without adducing
sufficient evidence (R v GDB, 2000 SCC 22, [2000] 1 S.C.R. 520 at
paragraphs 26-29; Flores v Canada (Minister of Citizenship and
Immigration), 2010 FC 1147 at paragraph 38).
[44]
The
sponsorship application will continue to be processed after his removal, and
the applicant will be able to return to Canada if the decision is in his favour (Berki v. Canada (Solicitor
General), 2005 FC 1084 at paragraph 5).
The removal officer has limited
discretion
[45]
The Court
has established that removal officers have limited discretion, which is limited
to deferring the removal because of special or compelling circumstances (Adviento
v. Canada (Minister of Citizenship and Immigration), 2003 FC 1430, 242 FTR
295 at paragraph 27; Simoes v Canada (Minister of Citizenship and
Immigration) (2000), 187 FTR 219, 98 ACWS (3d) 422 (FC) at
paragraph 12; Williams v Canada (Minister of Citizenship and
Immigration), 2002 FCT 853, 116 ACWS (3d) 89 at paragraph 21; Prasad
v Canada (Minister of Citizenship and Immigration), 2003 FCT 614, 123 ACWS
(3d) 533 at paragraph 32; Griffith v Canada (Solicitor General),
2006 FC 127, 146 ACWS (3d) 123 at paragraph 26).
[46]
However,
there is nothing special about the applicant’s circumstances.
[47]
In fact,
the applicant has not even formally applied to have his removal deferred.
[48]
The courts
have consistently held that a pending sponsorship application is not, in itself,
an obstacle to removal (Banwait v Canada (Minister of Citizenship and
Immigration) (1998), 79 ACWS (3d) 599, [1998] FCJ No 522 (QL/Lexis) (TD) at
paragraphs 17 to 19; Wang v Canada (Minister of Citizenship and
Immigration), 2001 FCT 148, [2001] 3 FC 682 at paragraph 5).
[49]
Considering
all the above, the applicant has failed to raise a serious issue in support of
his motion. The application for a stay of removal could be dismissed on
that ground alone.
B. Irreparable
harm
[50]
The notion
of irreparable harm was defined by the Court in Kerrutt v Canada (Minister
of Employment and Immigration) (1992), 53 FTR 93, 32 ACWS (3d) 621 (TD) as
being the removal of a person to a country where there is a danger to the
person’s safety or life.
[51]
Furthermore,
in Calderon v Canada (Minister of Citizenship and Immigration) (1995),
92 F.T.R. 107, 54 ACWS (3d) 316, Justice Sandra Simpson stated the following
about the definition of irreparable harm established 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.
[52]
In his
affidavit, the applicant merely alleges that [translation]
“it is too chaotic in Senegal, and the authorities are unable to support the
population” (MR, Applicant’s Affidavit at page 14, paragraph 39) and
that if he were to be removed, he would face [translation]
“a real risk as a result of his marriage with a women of another religion”,
without specifying either this risk or his or his wife’s religion (MR, written
submissions of the applicant at page 21, at paragraph 37).
[53]
The
applicant has not filed any evidence in support of these vague allegations.
[54]
It is not
sufficient for a claimant to make allegations of harm in an affidavit. When that harm
is a fear of being mistreated if removed to one’s country, it is also necessary
to adduce evidence establishing the objective basis of that fear: Gogna v
Canada (Minister of Employment and Immigration) (1993), 68 FTR 140, 42 ACWS
(3d) 480).
[55]
None of the
documents adduced by the applicant in this file or the related files indicates
the applicant’s or his wife’s religion. The applicant has also not
adduced any evidence on possible religious intolerance in Senegal.
Applicant’s
spouse
[56]
The
applicant’s spouse stated in her affidavit that she could not go and live in
Senegal with the applicant because of her religion and because the applicant’s
family allegedly rejected them.
[57]
However,
the applicant’s parents, who allegedly disowned him after having been informed
of his marriage, live in the United States, not Senegal.
[58]
The
applicant’s spouse also claims to have taken on many commitments with the
applicant in relation to their married life and that it would be impossible for
her to fulfill those commitments alone.
[59]
The
problems raised by the applicant’s spouse are usual consequences of removal. Furthermore, no
details or evidence are provided about these commitments.
[60]
It is well
settled that separation from family does not, in itself, constitute irreparable
harm, since it is a usual consequence of removal (Tesoro v. Canada (Minister
of Citizenship and Immigration), 2005 FCA 148, [2005] 4 FCR 210 at
paragraphs 34 to 45).
[61]
Separation
from a spouse is not the type of harm to which the tripartite test for
obtaining a stay refers (Melo v. Canada (Minister of Citizenship and
Immigration), [2000] 188 FTR, 96 ACWS (3d) 278) at paragraph 21
(T.D.).
[62]
Ultimately,
the applicant and his spouse were aware of the applicant’s illegal and, thus,
precarious status when they allegedly made their commitments. They made their
decisions with full knowledge of the situation. In the words of Justice
Paul Rouleau, they did so at their peril (Banwait, above, at
paragraph 16).
[63]
Accordingly,
in the absence of a serious issue to be tried by this Court, the applicant has
failed to establish irreparable harm.
C. Balance of convenience
[64]
In addition
to showing that the underlying ALJR raises a serious issue to be tried and that
the person would suffer irreparable harm if his or her removal is not stayed,
the person applying for a stay must establish that, considering all of the
circumstances, the balance of convenience weighs in favour of granting the stay
(Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 SCR
110; RJR‑Macdonald Inc., above; Toth, above).
[65]
In order to
determine the balance of convenience, the Court must decide which of the two
parties will suffer the greater harm depending on whether the stay is granted
or refused (Metropolitan Stores Ltd., above).
[66]
In the absence of
serious issues and irreparable harm, the balance of convenience favours the
Minister, who has an interest in having a removal order enforced on the
scheduled date (Mobley v. Canada (Minister of Citizenship and Immigration),
[1995] FCJ No. 65 (QL/Lexis) at paragraph 2).
[67]
In fact,
subsection 48(2) of the IRPA provides that a removal order must be
enforced as soon as it is reasonably practicable.
[68]
The Court has
acknowledged expressly that the Minister has the duty to enforce valid removal
orders and that it is in the public interest to enforce such orders quickly.
The Court has identified public interest considerations underlying the
assessment that must be conducted of the balance of convenience:
[18] There is a
public interest in having a system which operates in an efficient, expeditious
and fair manner and which, to the greatest extent possible, does not lend
itself to abusive practices. This is the public interest which in my view must
be weighed against the potential harm to the applicant if a stay is not
granted.
Membreno‑Garcia v. Canada (Minister of
Employment and Immigration),
[1992] 3 FC 306, 55 FTR 104 (T.D.).
[69]
The balance of
convenience favours the Minister.
VI. Conclusion
[70]
For all of the reasons
above, the application for a stay of enforcement of the removal order is
dismissed.
ORDER
THE COURT ORDERS the dismissal of the application to stay
the removal order’s enforcement.
“Michel M.J. Shore”
Certified true
translation
Sarah Burns
Email this Content