Docket: IMM-7853-11
Citation: 2011 FC 1273
Vancouver, British Columbia, November
7, 2011
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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MYUNGAH ROH
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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
I. Overview
[1]
Ms.
Roh is a citizen of South Korea who came to Canada two and a
half years ago and made an unsuccessful refugee protection claim. In
making arrangements for Ms. Roh’s removal from Canada, the Canada
Border Services Agency (CBSA) has acted throughout with both caution and
respect for Ms. Roh’s safety and dignity. CBSA has been attempting to remove
Ms. Roh since June 30, 2011.
[2]
Ms. Roh’s
circumstances in Canada are sad and difficult. She has no family
or assets in Canada; has never worked in Canada and is being supported by social assistance. She has become
so fearful of removal that she is suicidal. However, she has failed to
establish an objective basis for her fear. If she remains in Canada, she will continue to live under threat of removal under
her existing deportation order.
[3]
Ms. Roh’s claims for
protection have been rejected three times: once by the Refugee Protection
Division (RPD) and in two negative Pre-Removal Risk Assessment (PRRA)
decisions. Her refugee protection claim and her first PRRA application both
alleged a risk of harm from a loan shark from whom Ms. Roh and her mother had
borrowed money. Her applications to judicially review the RPD and first PRRA
decision were denied.
[4]
CBSA had ongoing
consultations with, and obtained approval from, her medical doctor about
appropriate arrangements for Ms. Roh’s removal from Canada. Her doctor has consulted with a psychiatrist who
treated her. CBSA is obtaining an assessment from a psychiatrist about her
fitness to travel.
[5]
CBSA has arranged for
Ms. Roh to be escorted by a psychiatric nurse and an officer on her trip home;
to be met by a medical escort for admission and treatment in a specialized
hospital, in addition to a Canadian Migration Integrity Officer and a South
Korean government official to ensure her physical protection. Thereby, to
fulfill the specific commitment undertaken by the South Korean government to
the Canadian government in regard to ensuring the well-being and safety of their
citizen, having acknowledged that bringing under control criminality and
victimhood has now become a key priority for the South Korean government.
[6]
Ms. Roh’s second PRRA
application added her fear that South
Korea would be unable to
provide her with adequate mental health care. Ms. Roh is seeking a stay of the
execution of her removal order pending judicial review of her second negative
PRRA decision.
[7]
In lengthy reasons
for decision, the first PRRA Officer carefully considered the evidence
presented by Ms. Roh and rendered a reasonable decision. The PRRA Officer also
denied Ms. Roh’s application for an exemption from the law on Humanitarian
and Compassionate (H&C) grounds.
[8]
The Respondent
Minister submits that Ms. Roh’s motion should be dismissed as she has failed to
establish the elements necessary to obtain a stay of her removal order: she has
not raised a serious issue; not shown that she would suffer irreparable
harm; and the balance of convenience favours the Minister.
[9]
Ms. Roh is scheduled
to be removed from Canada on or about Tuesday, November 8, 2011.
Ms. Roh is under a 24-hour suicide watch in a separate unit at the Surrey
Pre-Trial Centre, where medical care is available, pending her removal from Canada.
[10]
Ms. Roh previously
attempted suicide when she was in South
Korea and she was admitted
to hospital there. She has provided no evidence of any concerns about her
treatment during that stay in hospital. She is being returned into the care of
that hospital in South Korea.
II. Judicial
Procedure
[11]
The
Applicant is seeking a stay of removal to South Korea on November 8, 2011, pending the
determination of her application for leave and for judicial review.
III. Background
[12]
The
Applicant, Ms. Myungah Roh (aka Stella Roh), is a South Korean national born on
December 10, 1973. The Applicant is a highly vulnerable woman with documented
physical and mental disabilities caused by her treatment in South Korea. The Applicant fled to Canada on March 11, 2009,
and applied for refugee protection upon arrival.
[13]
The
Applicant fears persecution and cruel and unusual treatment from South Korean
criminal loan sharks that have violently assaulted her and attempted to kidnap
her in the past. The Applicant has sustained long-term physical and
psychological disabilities from these attacks. These criminal gangs have
continued to harass the Applicant’s family members in South Korea and repeat
their threats to force her into prostitution (sex trafficking) to pay back her
family’s loan (Personal Information Form [PIF]; First Pre-Removal Risk
Assessment [PRRA], dated December 10, 2010; Affidavit of Myungah Roh,
dated July 16, 2011; Translated Certificate of Person with Disability, dated January
13, 2004; Medico-legal Letter, dated March 25, 2010).
[14]
The
Applicant’s refugee claim and first PRRA application have documented the
persecutory harassment she experienced in South Korea since 2000, when she guaranteed a family
loan. Her mother’s business went bankrupt and criminal loan sharks began
sending men to harass Ms. Roh for loan repayment. When the harassment
started, Ms. Roh and her family members tried to report the incidents to the
South Korean police many times but they were not helpful. Rather than assisting
to stop the harassment and escalating threats, the police only instructed Ms. Roh’s
family members to negotiate themselves with her criminal aggressors. Around
December 2000, the men tried to kidnap Ms. Roh and she had to leave her home.
Ms. Roh was also fired from her job because the aggressors harassed her at her
workplace. Ms. Roh had tried to relocate and continually lived in-hiding due to
fear of her criminal loan shark aggressors, but each time her persecutors were
able to locate her.
[15]
The
criminal gang members went to her home and demanded payment of USD$100,000
(illegally high interest). After the men left her home, Ms. Roh tried to report
the matter to the police and again they were unhelpful. The criminal gang
members repeatedly harassed and threatened Ms. Roh by telephone. The men
told her they would sell her body into prostitution at the brothels or kill
her and leave no evidence behind. Around the fall of 2006, the criminal gang
members damaged Ms. Roh’s home by hitting a wall until there was a crack in it.
[16]
Around
March 2007, the criminal gang members came to Ms. Roh’s home and destroyed her
furniture, TV and computer with bats. Ms. Roh was home at the time and
attempted to stop them. She was pushed down and could not breathe. Ms. Roh
seriously hurt her back during this physical attack incident. For one week, Ms.
Roh could not move and she had to remain prone. As a result of this
attack Ms. Roh suffers from permanent back injury (bulging degenerating disc)
and disabling back pain to this day. Ms. Roh attempted to file a police report
about this attack incident. The South Korean police refused to accept the
report unless she could obtain a medical report. At the time in 2007, Ms. Roh
was unable to get a medical report because she could not afford the exorbitant
private medical fees. Without a medical report, the South Korean police refused
to take her complaint about the March 2007 attack. The Applicant continued to
live in-hiding and fear her persecutors in South Korea until she fled to Canada in March 2009.
[17]
In
the Applicant’s H & C application, submitted on July 18, 2011, she has
provided affidavit evidence about recent on-going threats from the criminal loan
sharks targeting her for forced prostitution or death threats. The Applicant’s
mother received phone calls as recently as June 12, 2011 targeting her daughter.
When the Applicant’s mother reported the phone threats to the police they
refused to help stating that her daughter is in Canada and there is no need to worry.
[18]
Due
to her persecutory and traumatic experiences in South Korea, the Applicant
continues to suffer from high suicidality risk, Post Traumatic Stress Disorder
and Major Depression and disabling back pain in Canada. Ms. Roh has been hospitalized for
suicidality in July 2011. After Ms. Roh’s deferral request was denied by
the CBSA, she attempted to kill herself on October 24, 2011. Ms. Roh was found
unconscious in her apartment with suicide notes. She was hospitalized at the
Intensive Care Unit of St. Paul’s Hospital when on October 26, 2011, CBSA Officers
attempted to arrest her while she was unconscious (Involuntary Committal Order
(Motion Record [MR] at p 489); further PRRA/H&C Suicide Attempt
Evidence (MR at pp 490-492); Second CBSA Deferral Request (MR at pp 493-498);
Letter CBSA Detentions (MR at p 525); Second PRRA Decision and Reasons (Tab 2);
H&C Decision and Reasons (MR at pp 501-516)).
IV. Issues
[19]
To
obtain an interim stay of a removal order, an applicant must establish all
three elements of the Toth test:
1. That
there is a serious issue to be tried;
2. That the
applicant will suffer irreparable harm if the stay is not granted; and
3. That the
balance of convenience is in the applicant’s favour.
(Toth v Canada (Minister of Employment and
Immigration) (1988), 86 NR 302, 11 ACWS (3d) 440 (FCA)).
V. Analysis
[20]
Due
to the specific circumstances of the case and extraordinary
provisions made by the Canadian and South Korean
authorities, the Court is in agreement with the position of the Respondent
that the Applicant has failed to establish any of the three essential elements
of the Toth test.
A. Serious
Issue
[21]
Ms.
Roh argues that she has raised the following serious issues in the underlying application
for leave and for judicial review of the PRRA decision:
a) the second PRRA
Officer erred in applying the law on state protection;
b) the second
PRRA Officer erred by not applying the Immigration and Refugee Protection
Board’s Gender Guidelines; and
c) the second PRRA
Officer disregarded certain evidence.
[22]
The
Applicant has failed to establish a serious issue in her underlying application
for leave and for judicial review of the second PRRA decision.
(1) General
[23]
The
nature of the decision of a PRRA Officer warrants considerable deference on
judicial review and should not be set aside unless it is unreasonable (Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 44-64).
[24]
Further,
it is not the role of this Court to reweigh the evidence and submissions with
respect to state protection and substitute its discretion for that of a second
PRRA Officer. Where there is nothing unreasonable in the PRRA decision, there
will be no serious issue for the purposes of a stay application (Tharumarasah
v Canada (MCI), 2004 FC 211, at para
6; Ramos v Canada (MCI), 2008 FC 179).
(2) Second PRRA Application
[25]
Ms.
Roh alleged the same risks in her PRRA application that she alleged at her
failed refugee hearing and her first PRRA application; namely, that if she is
forced to return to South
Korea she
will be harmed or sold into prostitution by the loan shark. She was found not
to be at risk on this basis by the RPD and in her first PRRA application.
[26]
In
addition, in her second PRRA application, she submitted that the state of South Korea was unable to provide
her adequate mental health care.
[27]
The second
PRRA Officer found that Ms. Roh is not at risk on any of these grounds. The Officer
found, as did the RPD on June 9, 2010 and the first PRRA Officer on December
20, 2010, that state protection is available to Ms. Roh in South Korea from the loan shark. In
coming to this conclusion, the second PRRA Officer considered the general
status of women in South Korean society.
[28]
In
addition, the second PRRA Officer thoroughly analyzed the evidence regarding
medical and mental health care in South Korea, including evidence of ongoing
improvements to the mental health care system in South Korea. The Officer concluded:
South
South Korea’s universal
health care system, while not perfect, is vigorously and continuously, in
collaboration with the WHO, taking steps to improve health care for mentally
ill patients in the country. The government clearly has undertaken many of the
NHRCK’s [National Human Rights Commission of South Korea] recommendations to
fruition and maintains a good relationship with this patient advocacy group.
Clearly, the system still has its failings, as do all progressive health care
systems; however, the more persuasive independent evidence shows that the
governments is serious about improving the mental health care systems and has
implemented measures that make it today a very progressive medial system,
including addressing both within the medical field and within families, the
social stigma recognized against mental health patients.
(Second PRRA Decision,
Wunderlich Affidavit, Respondent’s Motion Record (RMR), Vol 2 at Tab 2).
(3) Gender Guidelines
[29]
Ms.
Roh also claims that the second PRRA Officer erred by failing to engage in a
gender-based analysis as required by the Immigration and Refugee Board’s (IRB) “Chairperson’s
Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution” (Gender
Guidelines).
[30]
Ms.
Roh relies on case law regarding the IRB’s obligation to consider the Guidelines
established by its Chairperson, although the Guidelines have not been known to apply
to Respondent Minister’s officers. In any event, the second PRRA Officer was
sensitive to Ms. Roh’s particular circumstances, as required by the IRB Gender
Guidelines.
[31]
The IRB
is an independent administrative tribunal created under the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA). The IRPA gives the
Chairperson of the Board the power to issue guidelines “to members of the
Board to assist members in carrying out their duties…” (IRPA at para 159(1)(h)).
[32]
The
PRRA Officer is not a member of the RPD and is instead a federal civil servant
employed as an officer of the Respondent Minister, which Minister has a right
to participate, make submissions, and intervene in RPD proceedings. The
IRB’s Guidelines do not apply to PRRA officers (IRPA at ss 4(1), para 170(d)
and (e)).
[33]
As
stated by this Court, “the purpose of the Guidelines is to ‘ensure that
gender-based claims are heard with sensitivity.’” There is no requirement even
for RPD members to refer to the Guidelines themselves (Martinez v Canada (MCI), 2010 FC 31at para 22).
[34]
In
any event, the second PRRA Officer’s reasons for decision demonstrate that the Officer
was sensitive to the gender-based aspect of Ms. Roh’s claim. The Officer
dedicated a separate section of her reasons to consideration of evidence
regarding the status of women in South Korean society. Further, Ms. Roh has not
specified how the Officer allegedly failed to apply the Guidelines, or how this
might have affected her decision. Ms. Roh has failed to raise a serious issue (Martinez, above, at para
23).
(4) Second PRRA Officer Correctly Interpreted the State Protection
Law
[35]
Ms.
Roh argues that the second PRRA Officer did not consider whether the state
protection available to her in South Korea is adequate. Ms. Roh’s claims, based on her fear of the loan
shark, been repeatedly rejected on the basis that state protection is available
to her. In addition, the Officer did consider the adequacy of state
protection as she considered evidence of how the laws against loan sharks were
actually implemented, with crackdowns resulting in 1000 loan sharks being put
out of business.
[36]
In
addition, the Officer also considered the adequacy of protection and
availability of protection to women and concluded that it would not be
objectively unreasonable for Ms. Roh to seek protection from the loan sharks.
[37]
The
second PRRA Officer also considered the adequacy of protection for Ms. Roh with
respect to her medical and mental disabilities. The Officer considered the
changes that have been implemented, protections available and support for
persons with disabilities in South Korea. The Officer
concluded that Ms. Roh would not be at risk on this basis.
[38]
Further,
Ms. Roh does not identify any evidence that it is not adequate or that the laws
are not being implemented in her particular situation.
[39]
The
Supreme Court of Canada held in Canada (AG) v Ward, [1993] 2 S.C.R. 689, that
there is a presumption that state protection is available to a claimant
and that claimants have the onus of providing clear and convincing
evidence that state protection is not reasonably forthcoming.
[40]
Further,
it is trite law that in order to rebut the presumption of state protection in
developed democracies, such as South Korea, a more onerous burden is placed on
Ms. Roh to demonstrate that the avenues of state protection were indeed
exhausted (Kadenko v Canada (SG), (1996), 124 FTR 160, 143 DLR (4th) 532; Hinzman v Canada (MCI), 2007 FCA 171 at para
57).
[41]
The
second PRRA Officer found that the loan shark’s incarceration (for a period of
approximately three years) was indicative of the capacity and willingness of
the South Korean state to protect its citizens from criminal elements (second
PRRA Decision, RMR, Vol 2, at Tab 2, Exhibit “YY” of Wunderlich Affidavit).
[42]
It
is evident that the second PRRA Officer interpreted and applied the correct
legal test for state protection and reasonably concluded that Ms. Roh had
failed to rebut the presumption regarding the availability of state protection.
(5)
Second PRRA
Officer Considered the Evidence
[43]
Ms.
Roh claims that the second PRRA Officer ignored the causal link of her physical
and medical disabilities to her persecutory experiences in South Korea and, thus, failed to
consider evidence. To the contrary, the Officer’s reasons explicitly disclose
that she considered all of Ms. Roh’s submissions regarding her
disabilities and alleged persecutory experiences.
[44]
No serious issues have
been raised with respect to the underlying judicial review application
challenging the second PRRA Officer’s decision.
B. Irreparable
Harm
(1)
General
[45]
In
order to satisfy the second branch of the Toth test, the onus is on an
applicant to establish the existence of a risk of harm that is not speculative
or based on a series of possibilities. An applicant must satisfy the Court that
the harm will occur if the relief sought is not granted (Molnar v Canada
(MCI), 2001 FCT 325, at para 15; Akyol v Canada (MCI), 2003 FC 931,
at para 7; Selliah v Canada (MCI), 2004 FCA 261, at para 13-15; Atwal
v Canada (MCI), 2004 FCA 427, at para 16-17).
[46]
In
the present case, Ms. Roh asserts that she will suffer irreparable harm because:
a. She is at risk in South Korea from the loan shark and
his associates who will force her into prostitution, and because she has a
mental illness requiring psychiatric treatment;
b. She will harm herself
because the prospect of removal and the removal process triggers her suicidal
ideation; and
c. Her application for
leave and for judicial review of the second PRRA application will become moot.
[47]
None
of these allegations meets the threshold of “irreparable harm” for the purposes
of staying the valid deportation order against Ms. Roh.
(2) Ms. Roh’s
allegations of risk in South
Korea do
not meet the threshold for irreparable harm
[48]
This
Court has held that where an applicant’s allegations of risk already have been
assessed and previously been found not to be well-founded by triers of fact, including
the RPD and prior PRRA Officers, those same allegations cannot then serve as
the basis for an argument supporting irreparable harm in a stay application (Akyol,
above, at para 8; Iwekaogwo v Canada (MCI), 2006 FC 782, at para 17; Saibu v Canada (MCI), 2002 FCT 103, at para
11).
[49]
The
RPD, first PRRA Officer, and second PRRA Officer all have assessed Ms. Roh’s
evidence, considered her allegations, and found that she is not at risk. This
Court ought not now to review allegations that have been fully evaluated by
several triers of fact.
[50]
Moreover,
insofar as Ms. Roh claims that if she is forced to return to South Korea the loan shark and his
associates would continue to harass her and possibly force her into
prostitution, this was the exact same claim that Ms. Roh made before the RPD
and in her first PRRA application. These allegations of risk of return were
fully examined and reviewed by both the RPD and the first PRRA Officer. In
both instances, Ms. Roh’s allegations of risk of return were rejected (RPD Reasons
and Decision, Wunderlich Affidavit, Exhibit “E”; PRRA #1 Decision and Reasons,
Wunderlich Affidavit, Exhibit “I”).
[51]
Further,
this Court dismissed applications for leave and for judicial review of both the
RPD and the first PRRA decisions (Federal Court Orders Dismissing Leave
for Judicial Review, Wunderlich Affidavit, Exhibits “M” & “P”).
[52]
In
addition, Ms. Roh argues that news of her potential deportation has exacerbated
the deterioration of her mental health and that there would obviously be
irreparable harm if she were to act on her suicidal thoughts upon
confirmation of her deportation from Canada; however, the Federal Court of
Appeal has held that psychological stress, depression or anxiety arising solely
from the removal does not constitute irreparable harm (Palka v Canada
(MPSEP), 2008 FCA 165, at para 17).
[53]
Further,
CBSA has gone to extraordinary lengths to ensure that all possible measures
have been taken to keep Ms. Roh safe until she is removed, during the removal
process, and upon her arrival in South Korea.
[54]
Ms.
Roh is currently under 24-hour suicide watch and is being checked every 15
minutes, in a separate part of the detention facility. She will be
accompanied at all times by a CBSA escort officer and a psychiatric nurse on
her trip to the airport, on the flight, and on her arrival in South Korea.
[55]
Once
informed of Ms. Roh’s removal arrangements, her medical doctor assisted with
medical needs for those arrangements. Ms. Roh’s medical doctor has
cooperated to ensure that she is being removed in the safest way possible
and has communicated all necessary medical information to the accompanying
psychiatric nurse. The South Korean Consulate has met with Ms. Roh to
determine which hospital she had been admitted to previously in South Korea so that she can go
to the same hospital, as she has never expressed any concerns about that
hospital. The South Korean government has committed itself to the Applicant’s
receiving proper medical attention and safekeeping from loan sharks. The word
and honour of the South Korean government is implicated as it is that
government that has committed itself to ensure the commitment is kept. The
safety of the Applicant’s person is tied to the face-saving gesture by the
South Korean government to bring under its control the criminality which it has
stated it is facing, challenging, and which the South Korean government has
stated it is establishing to have under its control. To that end, a Migration
Integrity Officer in South Korea has been assigned to her case as has a South
Korean government official.
[56]
Once
Ms. Roh reaches South
Korea she
will be met by a South Korean medical escort and a Canada Immigration Migration
Integrity Officer to ensure her safe delivery to the hospital where she can get
a proper psychiatric assessment and necessary care. CBSA has been informed that
Ms. Roh’s family in South
Korea will
come to meet her at the airport and is looking forward to her return.
[57]
Ms.
Roh has failed to demonstrate irreparable harm based on any of the grounds
cited in her argument due to the strong commitment of the South Korean
government for the Applicant’s well-being.
(3) No Irreparable Harm from Judicial Review being Rendered
Moot or Nugatory
[58]
Ms.
Roh argues that she will suffer irreparable harm if the stay is not granted
because her judicial review application will be rendered moot or nugatory.
[59]
With
respect to mootness, the Federal Court of Appeal has held that the rendering of
an underlying application for leave and for judicial review of a PRRA decision
is not “irreparable harm.” This is because, if such mootness were “irreparable
harm” for the purposes of a stay motion, it would apply to virtually all
removal cases where a stay is sought and deny the courts the opportunity to
examine irreparable harm on a case-by-case basis (Sittampalam v Canada (MCI),
2010 FC 562, 370 FTR 23, at para 44; Palka, above, at para 18-20).
[60]
In
this case, three different decision-makers have found that Ms. Roh would not be
at risk if returned to South Korea and, therefore, there are no other considerations in aid of
her mootness argument.
[61]
Further,
as the Court of Appeal has noted, even if an applicant’s judicial review application
does become moot, the Court may exercise its discretion to hear it in any event.
A discretion lies in favour of hearing appeals after stays have been dismissed
(Perez v Canada (MCI), 2009 FCA 171; Sittampalam,
above, at para 45).
[62]
Furthermore,
Ms. Roh can continue her litigation by instructing counsel from abroad. Removal
while her application is pending does not constitute irreparable harm due to
the commitment of the South Korean government (Selliah, above, at para
20; Sittampalam, above, at para. 46).
[63]
In
short, Ms. Roh’s argument on this point is simply incorrect in law. Indeed, in
its recent decision in Canada (MPSEP) v Shpati, 2011 FCA 286, the
Federal Court of Appeal again reinforced the principle that mootness of a PRRA
application does not constitute irreparable harm for the purposes of a stay of
removal:
[34] …
does the potential mootness of the pending PRRA litigation warrant deferral of
removal?
[35] In
my view, the answer to this question is no. If it were otherwise, deferral
would be virtually automatic whenever an individual facing removal had
instituted judicial review proceedings in respect of a negative PRRA. This
would be tantamount to implying a statutory stay in addition to those expressly
prescribed by the IRPA, and would thus be contrary to the statutory
scheme.
[36] Indeed,
counsel for Mr Shpati were not prepared to go this far. Their position and,
perhaps, that of the Judge (at para. 42) was that the potential mootness of the
PRRA litigation was not determinative in every case, but that it is an error of
law for an enforcement officer not to take it into account when determining
requests for the deferral of removal pending the disposition of judicial review
proceedings challenging a PRRA.
[37] I
disagree with this argument. First, the potential mootness of the PRRA
litigation would be a factor whenever an enforcement officer is asked to defer
a removal pending the determination of a judicial review of a negative PRRA. As
a result, it would be formalistic to insist that officers’ reasons must refer
to it in every case as a condition precedent of the validity of their decision.
[38] Second,
the potential mootness of the underlying judicial review application resulting
from the removal of the applicant does not necessarily constitute irreparable
harm to the applicant under the tripartite test so as to warrant the grant of a
judicial stay: El Ouardi v. Canada (Solicitor General), 2005 FCA 42 at
para. 8; Palka v. Canada (Minister of Public Safety and Emergency
Preparedness) 2008 FCA
165 at para. 20. However, the Judge’s decision granting Mr Shpati’s motion for
a stay seems to have given rise to divergent views in the Federal Court: see
paras. 37-40 of his reasons for the decision that is the subject of the present
appeal.
[39] If
mootness does not in itself amount to irreparable harm for the purpose of the
tripartite test for the grant of a judicial stay of removal, I see no reason
why enforcement officers should always be legally required to consider it when
determining a request for deferral pending the disposition of PRRA litigation.
[64]
Ms.
Roh has failed to show that she will face irreparable harm on her removal from Canada.
C. Balance of
Convenience
[65]
The
balance of convenience in this case strongly favours the Minister. Ms. Roh has
had full access to Canada’s immigration processes in the two and a half years
she has resided in Canada. She has had the
benefit of a refugee claim, two PRRA applications, and an H&C application.
All her claims have received negative determinations. Her applications to
judicially review her refugee claim determination and the first PRRA decision
were dismissed by the Federal Court (Selliah, above, at para 21-22).
[66]
Ms.
Roh is ill. She needs proper, ongoing care and support, and a stable
environment. Her situation in Canada is tenuous. She has exhausted her immigration
remedies, and remains under the threat of deportation. She has been unemployed,
transient, and on social assistance. She has no family support in Canada and while she has
continued her counselling, she appears to have been avoiding medical attention
at times.
[67]
Further,
Ms. Roh’s outlook in Canada is bleak as Social
Assistance BC is in the process of cutting her off assistance because she
is now an unsuccessful refugee claimant. If she remains in Canada she will continue to
have the threat of removal under her enforceable removal order hanging over her
head.
[68]
Ms.
Roh’s circumstances in South
Korea are
much more hopeful, with her family eager to welcome her and assist with her
care. Her family would be able to provide her a home, supervision, support, and
assist with her medical and mental disabilities. The balance of convenience
does not favour delaying her removal.
[69]
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 and passed for the common good. If a
statute charges a public authority with undertaking a particular action, the
Court should in most cases assume that irreparable harm to the public interest
would result from the restraint of that action (RJR- MacDonald Inc v
Canada (AG), [1994] 1 S.C.R. 311).
[70]
The
Minister of Public Safety and Emergency Preparedness is mandated by statute to
enforce Ms. Roh’s deportation order as soon as reasonably practicable. This
Court has held that the public interest supports the efficient, expeditious and
fair administration of Canada’s immigration laws. The
public interest favours Ms. Roh’s prompt removal from Canada (IRPA at ss
48(2); Membreno-Garcia v Canada (MEI), [1992] 3 FC 306, 93 DLR (4th) 620
(TD)).
[71]
As
stated by the Federal Court of Appeal, “[i]f the administration of immigration
law is to be credible, the prompt removal of those ordered deported must be the
rule, and the grant of a stay pending the disposition of legal proceedings, the
exception (Tesoro v Canada (MCI), 2005 FCA 148, at para 47).
VI. Conclusion
[72]
In
this specific case, recognizing the commitments the South Korean government
made to the Canadian government authorities, 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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