Docket: IMM-4241-11
Citation: 2011 FC 820
Montréal, Quebec, July 5, 2011
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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CAESAR BEVERLY YVONNE
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The applicant
is scheduled to be removed to Saint
Vincent and the Grenadines
on July 9, 2011. On June 20, 2011, the applicant filed an application to stay
her removal.
[2]
The evidence
shows that the applicant was advised of her removal date in person on May 12,
2011.
[3]
On June 23,
2011, the Removals Officer denied the request to defer the removal.
[4]
The Court
is in complete accord with the position of the respondent subsequent to the
factual evidence, statutory requirements and the interpretation of the
jurisprudence.
Background
[5]
The applicant
arrived in Canada on December 16, 1998. She had
no visa and claimed no status.
[6]
On
November 28, 2007, the applicant claimed refugee status. The claim was denied
by the Immigration and Refugee Board (IRB) on November 18, 2009.
[7]
An
application for leave was commenced against this decision. This application was
denied at leave stage on April 1, 2010.
[8]
In October
2010, the applicant filed for a Pre-removal risk assessment (PRRA). It was
denied on March 9, 2011.
[9]
An
application for leave was commenced against this decision. This application was
denied at leave stage.
[10]
On April
26, 2011, a Removals Officer met with the applicant to prepare her departure.
She advised him that she did not yet have Canadian passports for her children.
As a result, the Removals Officer provided the applicant with extra time to
prepare such documents or make arrangements with the father of the children.
[11]
On May 12,
2011, the Removals Officer advised the applicant that her removal was scheduled
for July 9, 2011, and that she needed to arrange for care of her children if
she decided they were to remain in Canada.
[12]
At this
time, she was also advised that her removal would not be postponed.
[13]
On June
20, 2011, the applicant filed an application to obtain permanent residence from
within Canada on humanitarian and
compassionate considerations (hereinafter H&C) pursuant to section 25 of
the Immigration and Refugee Protection Act.
[14]
On June
23, 2011, the Removals Officer office denied a formal request to defer the applicant’s
removal.
[15]
On June
28, 2011, an application for leave was commenced against this decision.
Issues
[16]
The
only issue at bar is whether the applicant meets the tri-partite test confirmed
by the Federal Court of Appeal in Toth v Canada (Minister of
Employment and Immigration)(1988),
86
N.R. 302 (FCA).
[17]
More
specifically, the Court must determine whether:
(a) there is a
serious issue to be tried in the underlying proceeding;
(b) the applicant will suffer irreparable harm if the
deportation order is executed;
and
(c) the balance
of convenience favours the applicant instead of the Minister.
[18]
This
test being conjunctive, the applicant’s failure to meet any one of its three
criteria must result in the denial of her Motion.
No serious issue to be
tried
[19]
It
is trite law that the discretion of an Officer when considering a request to
defer removal is limited. As noted in Perez v MPSEP, 2007 FC 627, the Officer
does not sit in judicial review or appeal of previous RPD, PRRA or H&C
decisions:
[34] A
removals officer cannot defer removal for just any proceeding in the IRPA, for
which he/she is not the mandated decision-maker. The removals officer does not
have the jurisdiction to make a renewed refugee assessment, nor a PRRA, nor a
decision on H&C grounds, nor, is he mandated to determine judicial reviews
or appeals of any of the preceding or other procedures. A removals officer is
solely mandated with the discretion to defer removal for reasons associated
with the challenges of arranging international travel.
[20]
In Baron v Canada (MPSEP), 2009 FCA 81; the Federal Court of Appeal
endorsed the decision of this Court in Simoes and concluded that
enforcement of removal was mandated by section 48 of the Immigration and
Refugee Protection Act and that only issues such as illness, impediments to
travel and, possibly, long-pending H&C applications may warrant deferral.
[49] It
is trite law that an enforcement officer’s discretion to defer removal is limited.
I expressed that opinion in Simoes v. Canada (M.C.I.), [2000] F.C.J. No. 936 (T.D.) (QL), 7 Imm.L.R.
(3d) 141, at paragraph 12:
[12] In
my opinion, the discretion that a removal officer may exercise is very limited,
and in any case, is restricted to when a removal order will be executed. In
deciding when it is "reasonably practicable" for a removal order to
be executed, a removal officer may consider various factors such as illness,
other impediments to travelling, and pending H & C applications that were
brought on a timely basis but have yet to be resolved due to backlogs in the
system. For instance, in this case, the removal of the Applicant scheduled
for May 10, 2000 was deferred due to medical reasons, and was rescheduled for
May 31, 2000. Furthermore, in my view, it was within the removal officer’s
discretion to defer removal until the Applicant’s eight-year old child
terminated her school year.– our emphasis
[21]
None of
these elements, and no similar factor, occurs in the context of this application
for a stay.
[22]
In Thirunavukkarasu v Canada (MCI), 2003 FC 1075, at paragraphs 4
to 6, this Court stated
that:
[4] The applicants argue that because
they have submitted an H & C application, section 233 of the Immigration
and Refugee Protection Regulations, SOR/2002-227
(the Regulations) establishes that the Minister may stay removal if there
exist humanitarian and compassionate considerations pursuant to subsection
25(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) even before a final
decision has been made as to whether or not to grant permanent resident status
pursuant to an H & C application. This subsection, it is argued,
requires at least some assessment of the H & C application on the merits
and the enforcement officer has a duty to assess, at least on an interim basis,
whether H & C considerations exist.
[5] This
submission does not raise a serious issue. Madam Justice
Simpson in Banik v. Minister of Citizenship and Immigration,
IMM-4861-03 stated that "to accept the applicant's interpretation would be
to bring the administration of the Act to a standstill and without any
supporting legislative history or a clear statement in the IRPA that the
removal officer's obligations have changed, I am not prepared to conclude that the
applicant's submission raises a serious question of law". Madam Justice
Simpson concluded that the law that developed limiting a removal officer's
discretion under the former Act is still applicable. Similarly, Mr. Justice
O'Reilly, in Firsova v. Canada (Minister of Citizenship and
Immigration) 2003 FC 933 (CanLII), 2003
FC 933, F.C.J. No. 1190 concluded that, "The provision simply states that
persons who have been granted the exemption shall not be removed until their
applications for permanent residence have been decided. It recognizes that
officers often deal with requests for humanitarian and compassionate
consideration while the applicants are still in Canada". I endorse
and adopt the reasoning of my colleagues in this respect.
[6]
The failure to establish a serious issue disposes of the motion.
[23]
The applicant relies
on the future determination of her H&C application to stay her removal. In
application of Thirunavukkarasu, it appears clear that such an
application has no merit and does not raise a serious issue.
[24]
As the applicant has
not raised a serious issue, the present motion could be dismissed for that sole
reason (Radji v Canada (MCI), 2007 FC 100, paragraph 11).
[25]
The applicant’s
H&C application was not filed on a timely basis. The applicant waited more than one (1) month
after being advised of the date of her removal to file an application to obtain permanent
residence from within Canada for H&C.
[26]
In
essence, the applicant is seeking a decision of her H&C from a removals
officer – this is not within his purview.
[27]
The applicant
is relying on the same facts to defer removal as she did on her application for
H&C. This appears clear as the applicant attached the document of her
H&C to her request for a stay of removal (Applicant’s Record, p. 91-92).
[28]
Under the
jurisdiction applicable to removals officers, the Removals Officer could not
exercise this function and rightly rejected the stay of removal.
[29]
The applicant
also states that the Removals Officer failed to provide reasons for the
decision.
[30]
This issue
is erroneously raised by the applicant. The applicant has not presented any
evidence to show that she made a request to receive reasons nor that such a
request would have been made in a timely manner.
[31]
This
Court, in Thomas v Canada (MCI), 2003 FC 1477,
paragraphs 10-11, insisted on the
importance of a request for reasons as well as its timeliness:
[10] Counsel
for the Applicant sought deferral of the Applicant's removal in a letter dated
the 28th of November, 2003 addressed to the Expulsions Officer who
provided the Applicant with her "direction to report" for removal.
Counsel wrote:
You have the discretion given the
extraordinary facts in this case and we ask that you please exercise your
discretion to save Ms. Thomas to the unpleasantness of having to face such a
psychologically threatening scenario in a current society that would likely
expose her to further risk.
The Expulsions Officer refused the
deferral citing only the statutory obligation of the Minister to carry out
removal "...as soon as is reasonably practicable."
[11] Counsel
requested reasons of the Expulsions Officer. The Expulsions Officer denied the
request indicating in notes to file appended to her affidavit herein that such
a request for reasons "...must be made through privacy co-ordinator."
I am satisfied that this response raises a serious issue to be tried on the
application for leave and for judicial review that underlies the Applicant's
motion for a stay of removal.
[32]
The applicant
has raised no serious issue in her application for a stay of removal.
No irreparable harm
[33]
This Court
has defined the notion of “irreparable harm” as the removal of a person “to
a country where his safety or his life is in jeopardy” (Kerrutt v Canada (MEI),
[1992] F.C.J. No. 237 (Q.L.)).
[34]
An irreparable
harm: “must […]
be much more substantial and more serious than personal inconvenience or
hardship. Rather, it must be based on a threat to the life or security of the
person, or an obvious threat of ill treatment in the country of origin.
Irreparable harm is harm which is irrevocable or permanent” (Perry v Canada (MPSEP), 2006 FC 378, par. 29).
[35]
In the present file,
there is simply no such evidence
(Louis v Canada (MCI),
[1999] F.C.J. No. 1101).
[36]
Indeed, both the IRB
and the PRRA officers concluded that the applicant would not face any risk
should she return to her country.
[37]
In the
irreparable harm section of her written representations, the applicant states
that her children would suffer irreparable harm by being sent to Saint Vincent and the Grenadines.
[38]
It is
important to note that the applicant’s children are not subject to removal.
[39]
Despite
this, the applicant seems to insist that she would choose to bring them with
her rather than then leave them with their father whom they see regularly.
[40]
This is a
choice the applicant may make: the applicant has not submitted evidence showing
that the children being left with their father would constitute irreparable
harm for her.
[41]
To the
contrary, the father’s affidavit demonstrates that he sees his children regularly,
is well aware of the needs of his children and cares for them. Though he may be
unemployed, the applicant is unemployed as well.
[42]
As for the
financial and emotional difficulties to the applicant that will follow her
departure, it is well settled in law that the separation from family members,
does not constitute, in and of itself, irreparable harm, but a mere consequence
of removal (Camara v Canada (MPSEP), 2008 FC
1089, par. 36.
See
also: Celis v Canada (MCI), 2002 CFPI 1231; Parsons v Canada
(MCI), 2003 CF 913; Selliah v Canada (MCI), 2004 CAF 261).
[43]
As stated
by this Court in Melo
v Canada (MCI), [2000] F.C.J. No. 403 (QL):
[21] These are
all unpleasant and distasteful consequences of deportation. But if 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. There is
nothing in Mr. Melo's circumstances which takes it out of the usual
consequences of deportation. […] As unhappy as these circumstances are, they do
not engage any interests beyond those which are inherent in the nature of a
deportation.
[44]
In these
circumstances, the applicant did not demonstrate that she would suffer
irreparable harm if she were to be returned to St-Vincent:
[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).)
[24] As noted in Gray v. Canada (Minister of
Citizenship and Immigration), 2004 FC 42
(CanLII), 2004 FC 42, at paragraph 14, this Court will be reluctant to
overturn, on an interlocutory motion, the findings of decision-makers, on
evidence that had been before the decisions-makers, who have considered risk,
and to substitute its evaluation of risk without clear and convincing evidence
that the decision-makers were in error. (Reference is also made to Raza
v. Canada (Minister of Citizenship and
Immigration), 2004 FC 42 (CanLII), 2004 FC 42, [2004] F.C.J. No. 31 (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 (M.C.I.), 2008 FC 256)
Our emphasis
[45]
Finally,
the applicant’s H&C application will proceed even if the applicant is
removed from Canada and if her application is granted, she will be able to
return to the country (Perry
v Canada (MPSEP), 2006
FC 378; Morello v Canada (MCI), IMM-6552-05, November 1, 2005; Lawes
v Canada (MCI), IMM-555-06, February 3, 2006).
[46]
The applicant
has not shown the presence of irreparable harm. She has clearly not fulfilled her burden
of proof and therefore, has not met the second criteria of the Toth
tripartite test.
The
balance of convenience favours the respondent
[47]
The applicant
remained in Canada without status for
approximately nine (9) years prior to claiming refugee status.
[48]
She has benefited from a review of her
risk allegations by the Refugee Protection Division, this Court and a PRRA
Officer.
[49]
The applicant
was not without knowing that she could be removed. Despite this, she failed to
ask for consideration of an H&C until more than one (1) month had passed
since being informed of her removal.
[50]
Additionally,
a removals officer explicitly gave her an extended period of time to prepare
for her departure and that of her children should she choose to leave with
them.
[51]
What she
chose to do rather, was file for H&C and to ask that the removals officer
act in lieu of an H&C officer until her application for H&C was
processed. The removals officer had no jurisdiction to act in this manner.
[52]
Paragraph
48(1) of IRPA provides that removals must be enforced as soon as reasonably practicable.
[53]
As was
said in Acharige
v Canada (MCI), 2006 FC 240:
The
circumstances of this case are such that the balance of convenience lies with
the Minister. The Minister is under a statutory duty to enforce the Removal
Order as soon as is reasonably practicable. There is a public interest in
enforcing removal orders in an efficient, expeditious and fair manner. Only in
exceptional cases will a person's individual interest outweigh the public
interest (Immigration and Refugee Protection Act, S.C. 2001, c.27,
s. 48; Akyol v. Canada (M.C.I.), [2003] F.C.J. No. 1182, 2003 FC 931 at para. 12; Dugonitsch v.
Canada (M.E.I.), [1992] F.C.J. No. 320 (T.D.)).
[54]
The balance
of convenience favours the respondent in this case.
Conclusion
[55]
For all
these reasons, the applicant’s application for a stay of removal is dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for a stay of removal be dismissed.
“Michel M.J. Shore”
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