Docket: IMM-7836-11
Citation: 2011 FC 1294
Vancouver, British Columbia, November
9, 2011
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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DURAN ARTIGA, JUAN RAMON
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Applicant
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and
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MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Overview
[1]
This
Court has held that a removals officer does not perform an adjudicative
function and any duty on that officer to provide reasons is minimal. In fact,
the Court in Boniowski v Canada (MCI), 2004 FC 1161 (QL/Lexis), stated the following
in regards to the adequacy of reasons provided by an enforcement officer in
response to a deferral request:
[11] …
any reasons requirement was fulfilled in the decision letter of September 12,
2003 where the officer indicated that she had received and reviewed the
applicants' submissions, and her decision was not to defer removal …
[2]
In
her decision, the officer specifically states that she considered the
Applicant’s request to defer removal based on the current “environmental
disaster” in El
Salvador.
Further, the officer advised that in the course of her investigation into
country conditions in El Salvador, she observed that CBSA had not conferred a
Temporary Suspension for Removal (TSR) or Administrative Deferral of Removal
designation on El
Salvador.
In addition, the officer pointed out that the Department of Foreign Affairs and
International Trade (DFAIT) had not declared an official travel warning
for El
Salvador
(Michelle Cruz Affidavit, Exhibit “Z” [Cruz Affidavit]).
II. Introduction
[3]
The
Applicant, Mr. Juan
Ramon Duran Artiga, is scheduled to be removed from Canada on November 11, 2011.
The Applicant is seeking a stay of his removal order until his application for leave
and for judicial review of the refusal of his deferral request is determined.
[4]
The
Court is in agreement with the position of the Respondent that the Applicant’s motion
be dismissed as he has failed to establish the elements necessary to obtain a
stay of his removal order. First, the Applicant has failed to raise a serious
issue with respect to the refusal of his deferral request. Second, the
Applicant has not shown that he will suffer irreparable harm. Third, the
balance of convenience does not favour the Applicant.
III.
Background (A longer background is provided as the Applicant has a
spousal sponsorship application in current process.)
[5]
Mr.
Juan Ramon Duran Artiga was born in Chalatenango, San Salvador, El Salvador, on January 3, 1986.
After being attacked by MS-13 members in mid-2005, the details of which are set
out in his Personal Information Form (PIF), Mr. Duran Artiga left El Salvador and made his way to Canada, arriving on or about
September 2005.
[6]
Mr.
Duran Artiga met Ms. Dora Castillo in or about December 2008.
[7]
Ms.
Castillo was born September 17, 1983 in San Salvador. Her father, Mr. Nicolas Argueta, travelled to Canada alone and claimed
refugee status in March 1987. Following his successful claim, he brought his
wife, Ms. Marina Castillo, and his three children, Dora, Maritza and Jose, to Canada. They arrived in
September 1994.
[8]
Ms.
Castillo’s eldest daughter, Lizette Nathalie Castillo, was born on February 8,
2003. Lizette’s father, Mr. Ronald Ochoa, is from Honduras. He was deported from
Canada back to Honduras when Ms. Castillo was
only three months pregnant. By the time Lizette was born, Mr. Ochoa was
already married to another woman in Honduras. Neither Lizette nor Ms. Castillo has any
relationship with Mr. Ochoa.
[9]
Ms.
Castillo has a second daughter; Enny Alejandra Vargas Castillo, who was born on
November 8, 2006. Enny’s father, Mr. Jose Vargas, left the family when Enny was
only one-month-old. Neither Lizette nor Ms. Castillo has any relationship with Mr.
Vargas.
[10]
When
Ms. Castillo met Mr. Duran Artiga, she was a single mother of two daughters and
living on social assistance.
[11]
Ms.
Castillo and Mr. Duran Artiga’s relationship grew quickly. He attended church
regularly, did not drink, and preferred to stay in as a family rather than go
out with friends. Three months after they began dating, Ms. Castillo and
Mr. Duran Artiga moved in together.
[12]
In
November 2009, Ms. Castillo learned that she was pregnant. Mr. Duran Artiga had
been living in Canada without status for
approximately four years.
[13]
In
December 2009, Mr. Duran Artiga applied for refugee status.
[14]
They
were married on June 12, 2010, with Ms. Castillo’s family and church friends
present. Ms. Castillo gave birth to Jeremy Nathaniel Duran Castillo on August
26, 2010. Mr. Duran Artiga is a dedicated father to Lizette, Enny and
Jeremy. Lizette and Enny both call him “daddy”.
[15]
In
February 2011, Mr. Duran Artiga received notice of his right to a Pre-Removal
Risk Assessment (PRRA). Ms. Castillo and Mr. Duran Artiga both swore that they
were surprised by this notice because they believed that he had a right to a
hearing. Ms. Castillo and Mr. Duran Artiga met with Mr. Robin Bajer, a lawyer,
who inquired of the Immigration and Refugee Board regarding his refugee
hearing. At that point, they learned that his refugee claim had been deemed
abandoned. Both Ms. Castillo and Mr. Duran Artiga swore that they did not
receive the notice for the hearing.
[16]
They
proceeded to fill out the PRRA on their own, without legal assistance.
[17]
Ms.
Castillo and Mr. Duran Artiga also began the process of filling out an
application for the Spouse or Common Law Partner in Canada class. It took them
time to fill out the application. They also had to collect documents, such
as his police clearance, from El Salvador and have them translated. Again, they did it without the
benefit of legal advice. It also took them a significant amount of time to save
the money for the processing fee.
[18]
The
in-land application was submitted to Vegreville, in August 2011. The receipt
for postage, as well as for application fees, is included in the Applicant’s Record.
[19]
Mr.
Duran Artiga received his negative PRRA decision at an interview with Canada
Border Services Agency (CBSA) on October 5, 2011. At that same meeting, he
received a letter which stated he had to bring an issued airline ticket to an
interview with the CBSA officer on October 13, 2011, with a departure date of
no later than October 20, 2011.
[20]
Mr.
Duran Artiga attended the meeting with the CBSA officer on October 13, 2011.
Counsel filed a request for a deferral of Mr. Duran Artiga’s removal in person.
At that meeting, Mr. Duran Artiga informed the officer that he could not
afford a flight back to El
Salvador.
He was informed that CBSA would make the travel arrangements.
[21]
The
deferral request was based on the harm that would come to Ms. Castillo and the
three children if Mr. Duran Artiga was removed. Mr. Duran Artiga is currently
the primary provider for his family. In all of his time in Canada, Mr. Duran Artiga was
only on social assistance for four months. He works as a roofer with Mr. Wilmer
Alvarez. He has worked with Mr. Alvarez for more than a year and a half. He
makes approximately $200 a day and works six days a week if weather permits.
Ms. Castillo is not on social assistance and Mr. Duran Artiga supports the
entire family.
[22]
At
the end of September, Ms. Castillo obtained a part-time job at the Suzy Shier
in Brentwood Mall. If he is not working, Mr. Duran Artiga will take care of the
children when she is at work. He also picks up the girls from school if Ms.
Castillo cannot because of work or other commitments.
[23]
In
addition to his employment, Mr. Duran Artiga also helps Ms. Castillo with
chores around the house, including feeding Jeremy, cleaning the house, buying
groceries, baby food, diapers and other necessities.
[24]
The
Regional Program Manager of CBSA officer refused the request to defer removal
on October 14, 2011.
[25]
On
October 21, 2011, Mr. Duran Artiga voluntarily appeared for his removal as
directed at the Vancouver
International Airport. Mr. Duran Artiga was
flown to Toronto. In Toronto, he was put on a flight
along with two other deportees. At the last minute, he was pulled off the
flight. CBSA gave him a letter to report to their office in Toronto on Monday morning.
[26]
Mr.
Duran Artiga spent Saturday and Sunday night in a hotel, which he paid for, and
went to their office on Monday morning. Mr. Duran Artiga was then flown back to
Vancouver on Monday night.
[27]
As
instructed by CBSA, he then attended a meeting with the CBSA officer on the
morning of October 25, 2011. He was told at that meeting that CBSA was going to
try to get another travel document as soon as possible, and remove him again as
soon as possible.
[28]
On
October 28, 2011, another request for deferral was submitted. The request
relied on the facts and materials from the first deferral request and made
additional submissions about the current flooding in El Salvador. Information about the
disaster was not included in the October 13, 2011 deferral request, as the
floods had not yet happened.
[29]
On
October 31, 2011, the CBSA officer refused the second deferral request.
[30]
On
November 2, 2011, the Applicant filed an application for leave and for judicial
review of the officer’s decision of November 1, 2011.
IV. Issue
[31]
In
order for a stay to be granted, an applicant must establish all three of the
following elements of the test for injunctive relief:
1. The
underlying application for leave and for judicial review of the removal
officer’s decision raises a serious issue to be tried;
2. He/she will suffer
irreparable harm if the stay is not granted; and
3. The balance of
convenience favours him/her.
(Toth v Canada (MEI) (1988), 86 NR 302, 11
ACWS (3d) 440 (FCA)
[32]
The
Court is in agreement with the Respondent that the Applicant has not met his
burden in this case.
V. Analysis
A. Serious
Issue
(1)
Elevated threshold and standard of review
[33]
The Court of Appeal has
stated that an elevated standard for serious issue applies to a stay motion
arising from a refusal to defer an applicant’s removal because the stay, if granted,
effectively grants the relief sought in the underlying judicial review
application. Accordingly, rather than simply applying the “serious issue test,”
the Court must closely examine whether, on its merits, the underlying
application is likely to succeed (Baron v Canada (MPSEP), 2009 FCA 81, [2010] 2 FCR
311 at para 66 [Baron]).
[34]
In
determining whether a serious issue exists, the Court must keep in mind that
the discretion of an enforcement officer to defer removal is limited. In Baron,
above, the Court characterized the discretion of the enforcement officer in
considering a request for deferral.
[35]
In
order to respect the policy of the Immigration and Refugee Protection Act, SC
2001, c 27 (IRPA) which imposes a positive obligation on the Minister,
while allowing for some discretion with respect to the timing of a removal,
deferral should be reserved for those applications where failure to defer will
expose the applicant to the risk of death, extreme sanction or inhumane
treatment (Baron, above, at para 51).
[36]
Further,
the standard of review applicable to the deferral decision of an enforcement
officer is reasonableness. Accordingly, the Court only intervenes if the
decision of the enforcement officer falls outside the “range of possible,
acceptable outcomes which are defensible in respect of the facts and law” (Baron,
above, at paras 67 and 74); Canada (MPSEP) v Shpati, 2011 FCA 286 at para
27).
(2) Country
Conditions in El
Salvador
[37]
The
Applicant argues that the CBSA Regional Program Manager fettered her discretion
when she refused to grant the Applicant’s deferral request on the basis of
flooding in El
Salvador.
The Respondent submits that the officer considered all of the relevant evidence
and determined that current country conditions in El Salvador did not warrant a
deferral of the Applicant’s removal from Canada.
[38]
This
Court has held that a removals officer does not perform an adjudicative
function and any duty on an officer to provide reasons is minimal. In fact, the
Court in Boniowski v Canada (MCI), 2004 FC 1161 (QL/Lexis), stated the following
in regards to the adequacy of reasons provided by an enforcement officer in
response to a deferral request:
[11] …
any reasons requirement was fulfilled in the decision letter of September 12,
2003 where the officer indicated that she had received and reviewed the
applicants' submissions, and her decision was not to defer removal …
[39]
In
her decision, the officer specifically states that she considered the
Applicant’s request to defer removal based on the current “environmental
disaster” in El
Salvador.
Further, the officer advised that in the course of her investigation into
country conditions in El
Salvador, she
observed that CBSA had not conferred a Temporary Suspension for Removal (TSR) or
Administrative Deferral of Removal designation on El Salvador. In addition, the officer
pointed out that the Department of Foreign Affairs and International Trade (DFAIT)
had not declared an official travel warning for El Salvador (Michelle Cruz
Affidavit, Exhibit “Z”, RMR, Tab 1 at p 91 [Cruz Affidavit]).
[40]
The officer’s
decision to not defer the Applicant’s removal based on flooding in El Salvador was reasonable and does
not give rise to a serious issue.
(3) Best interests of children
[41]
The
Applicant argues that the officer ignored evidence regarding potential risks
that would be faced by the Applicant’s children if he were to be removed from Canada. Given the narrow
discretion afforded to a removals officer with respect to granting a temporary
deferral, the officer properly considered all the relevant facts before her and
reasonably concluded that the Applicant had failed to establish the grounds to
warrant a deferral.
[42]
The
officer properly considered the best interests of the Applicant’s children in
accordance with the aforementioned law. In expressly addressing the best
interests of the Applicant’s children the officer stated:
I
have also considered the best interest of his children, highlighting short
term options. His children are Canadian Citizens and can therefore travel to
El Salvador and stay with Mr. DURAN ARTIGA or they can stay in Canada to be with their biological mother. In both scenarios the
children will have access to either parent. If the children stay in Canada they will have additional support from their extended
family. If the children travel with Mr. DURAN ARTIGA then their mother can
travel to El Salvador to visit him or the family has the
option of moving to El
Salvador so the family unit
can stay together. This removal will not place the children at risk. [Emphasis
added).
[43]
The officer’s
consideration of the best interests of the Applicant’s children met the limited
obligation placed on removals officer to consider such interests. In fact, the officer
went further than was required of her when considering the best interests
question.
[44]
In
conclusion, the Applicant has failed to raise a serious issue in regards to the
officer’s deferral decision.
B. Irreparable Harm
[45]
The
evidence in support of irreparable harm must be clear and non-speculative.
Specifically, the Court must be satisfied that irreparable harm will occur if
the relief sought is not granted. In the present case, there is no clear and
non-speculative evidence that the Applicant’s removal will result in irreparable
harm to any party (Wade v Canada (MCI), [1995] FCJ No 579 (QL/Lexis) at paras 3-4).
(1) Country Conditions in El Salvador
[46]
The
Applicant argues that it would be unsafe for him to return to El Salvador at the current moment
due to flooding in the country. The evidence regarding potential risks to the
Applicant as a result of flooding are speculative at best. Further,
documentary evidence indicates that flood conditions in El Salvador have significantly
subsided in recent days.
[47]
Irreparable
harm is a strict test in which serious likelihood or jeopardy to an applicant's
life or safety must be demonstrated (Malagon v Canada (MCI), 2008 FC 1068 at paras
2 and 57).
[48]
In
this regard, this Court in Yvonne v Canada (MPSEP), 2011 FC 820 stated:
[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,
para 29).
[49]
The
evidence regarding potential risks to the Applicant as a result of flooding is
based on speculation. Further, documentary evidence indicates that flooding in El Salvador has significantly
subsided in recent weeks. For instance, a recent USAID report dated October 24,
2011, points out that flood conditions in El Salvador have considerably improved as rainfall has
decreased significantly and river levels have gradually begun to subside.
Further, the CBSA enforcement officer was informed by the Canadian Embassy in
San Salvador via e-mail that, as of November 2, 2011, the situation in and
around the capital had returned to normal and that the international airport in
San Salvador is fully operational (USAID – Update on Central America Floods,
October 24, 2011, RBOA, Tab C(4); Cruz Affidavit, Exhibit “AA”, RMR, Tab 1 at p
93).
[50]
The
Applicant, in the present case, has failed to demonstrate that the current
flooding in El Salvador would seriously
jeopardize his life or safety. Accordingly, irreparable harm has not been
established.
(2) Impact on Family
[51]
The
Applicant has failed to demonstrate irreparable harm if removed to El Salvador on the basis of the
impact his removal will have on his wife and children.
[52]
The
Applicant argues that irreparable harm will ensue if he is removed to El Salvador because his wife and
children depend on him financially and his family will suffer both emotional
and psychological harm as a result of the separation. The ensuing consequences
of removal cited by the Applicant are speculative and do not go beyond the
usual hardships, loss and sorrow associated with deportation. While the
situation faced by the Applicant’s wife and his children will, without question,
be a challenge, the Applicant’s wife has a number of immediate family members,
including parents, a brother and a sister, living within the Vancouver region,
who could assist her with the care of her three children.
[53]
Further,
the Applicant argues that he currently has an inland spousal sponsorship
application in process, and that if removed he would have to reapply as an
overseas applicant. In Canada spousal applications operate independently of
the deportation process. Moreover, knowing that he was subject to an
enforceable removal order, the Applicant could have chosen to submit an overseas
sponsorship application or an inland application on Humanitarian and
Compassionate (H&C) grounds, either of which would continue to be processed
after his removal from Canada. The Applicant instead elected to file an
application that requires him to be in Canada for processing.
[54]
For
all these reasons, the Applicant has failed to make out irreparable harm.
C. Balance of
Convenience
[55]
The
balance of convenience in this case favours the Minister. In assessing the
balance of convenience, the Court must consider the public interest in the
enforcement of laws that have been enacted by democratically-elected
legislatures. The IRPA requires that a removal order be enforced as soon as is
reasonably practicable. There is a public interest in enforcing removal orders
in an efficient, expeditious and fair manner and in supporting the efforts of those
responsible for doing so (IRPA at s 48; RJR- MacDonald Inc v Canada (AG),
[1994] 1 S.C.R. 311, at para 68-71).
[56]
In
addition, the Applicant has had the opportunity to receive the benefit of two
different risk assessments, a refugee determination as well as a
pre-removal risk assessment. The Applicant is now the subject of a valid
removal order. Consequently, it is in the public interest to provide finality
to the process. Otherwise, the integrity and fairness of, along with the public
confidence in, Canada’s system of immigration control will be compromised (Selliah
v Canada (MCI), 2004 FCA 261at para
21-22).
[57]
In
these circumstances, the public’s interest in the proper and effective
administration of Canada’s immigration controls
outweighs the Applicant’s desire to delay his removal. Consequently, the
balance of favour lies with the Respondent.
VI. Conclusion
[58]
The
Applicant has failed to establish any of the three elements necessary for this
Court to grant an order staying execution of the removal order. Consequently,
the Applicant’s motion to stay the execution of the removal order is denied.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the Applicant’s motion to stay the execution of the removal
order be denied.
“Michel M.J. Shore”
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