Date: 20070129
Docket: IMM-22-07
Citation: 2007 FC 94
Montréal, Quebec, the 29th day of
January 2007
Present:
The Honourable Mr.
Justice
Shore
BETWEEN:
Johan-Kévin
MAGANGA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION OF CANADA and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
[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.
Madam Justice Sandra Simpson wrote the above paragraph with
regard to the definition of irreparable harm established in Kerrutt (Calderon
v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J.
No. 393 (QL); Also: Lewis v. Canada (Minister of Citizenship and
Immigration), 2003 FC 1271, [2003] F.C.J. No. 1620 (QL), paragraph 9).
LEGAL PROCEEDINGS
[2]
On January
3, 2007, Johan-Kévin Maganga filed an application for leave and for judicial
review of a deportation order made on December 21, 2006, by the Minister’s delegate.
[3]
Incidentally
to this application for leave, on January 18, 2007, Mr. Maganga filed a motion to
stay the enforcement of his removal, which was scheduled for January 30, 2007.
PRELIMINARY COMMENT: AMENDMENT TO THE STYLE
OF CAUSE
[4]
Given the
reorganization of government departments, the Minister of Public Safety and
Emergency Preparedness should be added as defendant, pursuant to the Public
Service Rearrangement and Transfer of Duties Act, R.S.C. 1985, c. P-34, and
the Department Of Public Safety and Emergency Preparedness Act, S.C.
2005, c. 10, as well as orders in council P.C. 2003‑2059, P.C.
2003-2061, P.C. 2003-2063, P.C. 2004-1155 and P.C. 2005-0482.
SUMMARY OF FACTS
[5]
The
respondent refers the Court to the following exhibits submitted in support of
the affidavit of Francine Lauzé and to the facts disclosed by these exhibits,
as well as to the affidavit of Officer Louis Lessard, an enforcement officer
under the Act.
[6]
Mr.
Maganga, a citizen of Gabon, arrived in Canada on August 12, 2005, as a
temporary resident (study permit) for a period ending November 10, 2007 (Exhibit D of the affidavit
of Francine Lauzé).
[7]
On
December 4, 2006, Mr. Maganga pleaded guilty to a charge under paragraph 253(b)
of the Criminal Code, R.S.C. 1985, c. C-46. He was sentenced under
subparagraph 255(1)(a)(i) of the Criminal Code to the minimum sentence,
that is, a $600 fine plus costs to be paid within three months and a surcharge
of $90, also to be paid within three months (Exhibit A of the affidavit of
Francine Lauzé).
[8]
On December 7, 2006, a notice to appear was sent
to Mr. Maganga requesting that he report to the Canada Border Services Agency
(CBSA) office in Trois-Rivières on December 21, 2006, at 1:30 p.m. for an
interview (Exhibit B of the affidavit of Francine Lauzé).
[9]
After
receiving the notice to appear, Mr. Maganga telephoned the CBSA officer to ask why he was being summoned
to an interview. The officer explained to Mr. Maganga that the interview
concerned his status in Canada (Affidavit of Louis Lessard).
[10]
Mr.
Maganga reported for his interview on December 21, 2006. Before beginning the
interview, the officer advised Mr. Maganga that he was aware of his conviction
under paragraph 253(b) and subsection 255(1) of the Criminal
Code and was going to consider the consequences this conviction may have on
the applicant’s status in Canada, that is, whether the conviction dated December 4, 2006, could lead to the
preparation of a report concerning the removal of Mr. Maganga, pursuant to
section 44 of the Immigration and Refugee Protection Act, S.C. 2001, c.
27 (Act) (Affidavit of Louis Lessard).
[11]
On
December 21, 2006, Mr. Maganga’s interview began at 1:30 p.m. The officer questioned Mr.
Maganga about his conviction, his situation in Canada, and his family in Gabon. As mentioned in the affidavit of Louis
Lessard, Mr. Maganga stated that he was a scholarship student from Gabon, his
father worked in Gabon for an oil company as an accounting manager, his mother
worked as a manager in a bank in Gabon, he lived in a house with approximately
15 rooms in Gabon, and he received between $300 to $400 per month from his
parents. Mr. Maganga also specified that he had no children and, since
September 2006, had been living with a woman, a French citizen with student
status in Canada. Mr. Maganga stated that he
had a brother in Québec (Affidavit of Louis Lessard; Exhibit D of the affidavit
of Francine Lauzé).
[12]
On
December 21, 2006, following the interview with Mr. Maganga, the officer prepared
a report under section 44 of the Act to the effect that the applicant was not a
Canadian citizen or a permanent resident of Canada and was inadmissible under
paragraph 36(2)(a) of the Act because he had been convicted under
subsection 253(b) of the Criminal Code and was liable under
subsection 255(2) of the Criminal Code to
imprisonment for a term not exceeding five years (Exhibit D of the affidavit of Francine
Lauzé).
[13]
On December 21, 2006, the officer submitted the
section 44 report to the Minister’s delegate with a recommendation that a deportation
order be made against Mr. Maganga (Exhibit D of the affidavit of Francine
Lauzé).
[14]
On
December 21, 2006, the Minister’s delegate made a deportation order against Mr. Maganga
(Exhibit E of the affidavit of Francine Lauzé).
[15]
On December 21, 2006, a notice for a Pre-Removal
Risk Assessment (PRRA) was given to Mr. Maganga to advise him of the
possibility of applying for a PRRA by January 5, 2007, at the latest. Mr.
Maganga was advised that he was not required to give his answer immediately and
could think about it (Exhibit H of the affidavit of Francine Lauzé; Affidavit
of Louis Lessard).
[16]
On December 21, 2006, Mr. Maganga did not allege
any risks of return to Gabon and waived the right to apply
for a PRRA by signing a declaration of non-intent before the officer and the
Minister’s delegate (Exhibit D of the affidavit of Francine Lauzé; Affidavit of
Louis Lessard).
[17]
On
December 21, 2006, Mr. Maganga was advised once again to report to the CBSA on December 29, 2006, to schedule a
departure date (Affidavit of Louis Lessard).
[18]
On December 29, 2006, Mr. Maganga reported to the
CBSA with his lawyer and was advised to come back on January 10, 2007. The date of January 10, 2007,
was subsequently changed to January 11, 2007, with the consent of Mr.
Maganga and his lawyer.
[19]
On January
11, 2007, Mr. Maganga received a hand-delivered notice stating that his removal
would be enforced on January
30, 2007
(Exhibit J of the affidavit of Francine Lauzé).
ISSUE
[20]
Did Mr.
Maganga show that he met the three factors required to obtain a judicial stay
of the enforcement of a removal order?
ANALYSIS
[21]
To obtain
a judicial stay of a removal order, Mr. Maganga must establish the following
three elements:
(1) first, that he raised a
serious question to be decided;
(2) second, that he would suffer
irreparable harm if the order was not granted; and
(3) third, that the balance of
convenience, taking into consideration the general situation of the two
parties, is in favour of the issue of the order.
(Toth v. Canada (Minister of Employment and Immigration)
(1988), 86 N.R. 302 (F.C.A.))
IRREPARABLE HARM
[22]
The notion
of irreparable harm was defined by the Court in Kerrutt v. Canada (Minister of Employment and
Immigration)
(1992), 53 F.T.R. 93, [1992] F.C.D. No. 237 (QL) as being the removal of
a person to a country where there is a serious likelihood of jeopardy to an
applicant’s life and safety. In the same decision, the Court also
concluded that this must not simply be personal inconvenience or the breakup of
a family.
[23]
This decision
was followed among others by Simpson J. in Calderon, supra. In
fact, she mentioned the following with regard to the definition of irreparable
harm established in Kerrutt, supra:
[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.
[24]
In the
case at bar, the respondent submits that Mr. Maganga did not establish that he
would sustain irreparable harm if he were removed to Gabon.
[25]
Mr.
Maganga alleges that the enforcement of the removal order would cause the
following irreparable harm:
·
He would
miss his winter semester at the Université du Québec à Trois-Rivières;
·
He would
be unable to pay his fine and surcharge within a period of three months.
[26]
The
respondent submits that, first, Mr. Maganga did not allege any risks in
connection with his removal to Gabon and that, second, he waived the right to
apply for a PRRA following the notice given to the applicant by the CBSA on December 21, 2006, pursuant to section 160 of
the Immigration and Refugee Protection Regulations, SOR/2002-227
(Regulations). In addition, the time limit Mr. Maganga had to apply for a PRRA
expired on January 5, 2007, pursuant to the notice and section 162 of the
Regulations.
[27]
With regard
to the loss of his winter semester at the university, the respondent notes that
the notion of irreparable harm refers to harm to a person’s life:
[5] In
addition to the lack of a serious question before the Court from the
application for leave and for judicial review, I am also not satisfied in this
case that the applicant has established irreparable harm, another essential
requirement for a stay. I do appreciate that members of his family anticipate
suffering quite serious dislocation and emotional stress, in particular his
wife and her family. I also appreciate that removal may cause dislocation and
some psychological difficulties for Mr. Ram himself, but everyone who is
required, against his or her will, to leave Canada when he or she has no right to remain in this country faces similar
difficulties. I am not persuaded that those are special circumstances that
constitute irreparable harm.
(Ram
v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 883
(QL))
[28]
The
respondent submits that the loss of Mr. Maganga’s winter semester is directly
related to his summons and does not fit the definition of irreparable harm.
[29]
Furthermore,
the respondent submits that Mr. Maganga was advised that he had lost his study
permit, which had been seized on December 21, 2006. In fact, Mr. Maganga was the
subject of an enforceable removal order, as the study permit had become invalid
under section 222 of the Regulations (Exhibits E and G of the affidavit of
Francine Lauzé).
[30]
The respondent
argues that Mr. Maganga could have changed or cancelled his registration for
the winter semester, from January 8 to January 15, as appears from Exhibit C of
the affidavit of Francine Lauzé.
[31]
In
addition, contrary to Mr. Maganga’s argument regarding the payment of his fine
and surcharge, there is nothing preventing the applicant from taking steps to
pay them before his removal. In fact, the sentence specifies that the amounts
must be paid within a time limit of three months and not upon the expiry of a
period of three months.
[32]
Moreover,
the respondent submits that the imposition of a fine does not prevent
enforcement of a deportation order, as Mr. Maganga is not imprisoned, the
subject of a summons, or facing criminal charges (sections 50 of the Act and
234 of the Regulation).
[33]
Accordingly,
the respondent submits that Mr. Maganga did not discharge the burden of
establishing that he would sustain irreparable harm by reason of his
removal to his country.
ABSENCE OF A SERIOUS QUESTION
[34]
All of the
issues raised by Mr. Maganga in his submissions have been settled by the
judgment of the Federal Court of Appeal in Cha v. Canada (Minister of Public
Safety and Emergency Preparedness), 2006 FCA 126,
[2006] F.C.J. No. 491 (QL), dated March 29, 2006, by Mr. Justice Robert Décary,
concurred in by Mr. Justice Marc Noël and Mr. Justice Denis Pelletier.
[35]
Contrary to the facts in Cha, supra,
and following his notice to appear on December 7, 2006, Mr. Maganga was advised
by the officer that the purpose of his interview was to review his status in Canada.
[36]
In the
case at bar, it was up to Mr. Maganga to avoid putting himself in a situation that
would compromise his status. The respondent submits that by being convicted of
an offence under paragraph 235(b) of the Criminal Code, Mr.
Maganga became inadmissible under paragraph 36(2)(a) of the Act,
lost his status as a temporary resident because of a removal order (section 44
and paragraph 47(b) of the Act), and lost his study permit pursuant to paragraph
65(c) and section 222 of the Regulations.
[37]
Cha, supra, at paragraphs
35 to 39, supports the view that the Minister’s delegate properly exercised his
discretion in making a deportation order against Mr. Maganga, this discretion being
very restricted and limited to the facts of the case. In fact, it was proven
that Mr. Maganga was described in paragraph 36(2)(a) of the Act, to
which the section 44 report refers.
[38]
Because
the section 44 report proved to be well founded, the Minister’s delegate could
issue a removal order in the form of a deportation order, as specified in
section 44 of the Act and paragraph 228(1)(a) of the Regulations.
[39]
The
officer was not required to advise Mr. Maganga of his right to counsel, as he
was not detained (see paragraphs 53 to 61 of the judgment of the Federal Court
of Appeal in Cha, supra).
[40]
There was
no breach of the principles of natural justice in this case.
[41]
The deportation
order results from the application of the Act, and it is therefore not in the
interests of justice to set aside the deportation order for the reasons invoked
by Mr. Maganga, because the result would inevitably be the same, namely, the
issuance of a deportation order (paragraph 67 of the judgment of the Federal
Court of Appeal in Cha, supra).
[42]
In light
of the preceding, Mr. Maganga did not discharge the burden of establishing the
existence of a serious question.
BALANCE OF CONVENIENCE
[43]
In the absence of serious questions and
irreparable harm, the balance of convenience favours the public interest, which
is that the immigration process under the Act be upheld (Mobley v. Canada (Minister of
Citizenship and Immigration), [1995] F.C.J. No. 65 (QL)).
[44]
Under
subsection 48(2) of the Act, a removal order must be enforced as soon as
circumstances allow.
[45]
Madam
Justice Barbara Reed, in Membreno-Garcia v. Canada (Minister of Employment and
Immigration), [1992]
3 F.C. 306, [1992] F.C.J. No. 535 (QL), wrote the following on the issue of the
balance of convenience as it concerns stays, and of the public interest, which
must be taken into consideration:
[18] What is
in issue, however, when considering balance of convenience, is the extent to
which the granting of stays might become a practice which thwarts the efficient
operation of the immigration legislation. It is well known that the present
procedures were put in place because a practice had grown up in which many many
cases, totally devoid of merit, were initiated in the court, indeed were
clogging the court, for the sole purpose of buying the appellants further time
in Canada. 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.
[46]
In the
case at bar, the balance of convenience is in the Minister’s favour.
CONCLUSION
[47]
Mr.
Maganga did not show that he met the criteria for obtaining a stay. Accordingly,
this application for a stay cannot be allowed.
ORDER
THE COURT ORDERS that this application for a stay
be dismissed.
“Michel M.J. Shore”
Certified
true translation
Michael
Palles
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