Date: 20070222
Docket: IMM-666-07
Citation: 2007 FC 201
Ottawa, Ontario, February 22, 2007
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
SANDRA JACKSON &
TANYA AVIANNE ABERDEEN
Applicants
and
THE MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR
ORDER AND ORDER
[1]
The
applicants, mother and 12-year-old daughter, arrived in Canada in July 2002
on a visitors visa which was good for one year. They have been unsuccessful in
their attempts to obtain permanent resident status. Their first application to
be processed from within Canada on humanitarian and compassionate grounds,
their claim for refugee status and their pre-removal risk assessment (PRRA) have
all been negative. They are due to be returned to Trinidad and Tobago next week.
[2]
They
asked the immigration enforcement officer to defer their removal because they
have two other pending applications, a second H&C application and a skilled
worker application. The enforcement officer refused, which refusal is the subject
of an application for leave and for judicial review. In the meantime, they have
sought a stay of the removal order pending that application.
[3]
It
was open to the enforcement officer to defer removal. Had I been that officer, I
may well have done so. With some regret, I have come to the conclusion that
there are insufficient grounds to grant a stay pending the determination of the
application for leave and for judicial review.
[4]
As
enunciated in such cases as Toth v. Canada (Minister of
Employment and Immigration) (1988), 86 N.R. 302, in order to obtain an
interlocutory stay, the applicants must meet a tripartite test. There must be a
serious issue in the underlying court application. There would be irreparable
harm if the stay were not granted, and the balance of convenience must rest
with them.
[5]
Subsection
48(2) of the Immigration and Refugee Protection Act requires a foreign
national to leave Canada once a removal order is enforceable “and it
must be enforced as soon as is reasonably practicable”. In the applicants’
case, the removal order became enforceable once the negative PRRA decision was
handed down last November.
[6]
The
applicants submitted there were a number of reasons why the enforcement officer
should have exercised her discretion and deferred the removal:
a.
A
skilled worker application was filed in January 2006.
b.
The
current H&C application was received in April 2006.
c.
The
applicants’ entire family is in Canada, not Trinidad and
Tobago.
d.
Ms.
Jackson is currently employed, is active in the community and has filed
impressive character reference letters.
e.
Tanya
is an excellent and popular student.
f.
Trinidad
and Tobago
abounds with sexual predators.
[7]
In
her notes to file, the enforcement officer acknowledged these points.
Applicants’ counsel says they may have been acknowledged but were not analysed.
However, there was some analysis. There are delays in the system, delays which
in fact are published on government websites. The decisions on the skilled
worker and H&C applications are not imminent. There does not appear to have
been any administrative error which may have contributed to a delay such as
implied in Razzaq v. Canada (Minister of Citizenship and Immigration),
2006 FC 148, [2006] F.C.J. No. 192 (QL) (varied, 2006 FC 442, [2006] F.C.J. No.
554 (QL)). Based on Paterson v. Canada (Minister of Citizenship and
Immigration), [2000] F.C.J. No. 139 (QL), counsel submitted that there is a
policy not to enforce a removal order if an H&C application has been
pending for more than six months. However, if there was such a policy then,
there does not appear to be such a policy now.
[8]
It
has been suggested that Tanya will lose her school year. However, no evidence
was given to the enforcement officer as to school terms, or that summer school
is not available.
[9]
Finally,
the basis of Ms. Jackson’s fear of returning to Trinidad and Tobago is that she
would be subjected to sexual predators. There had been a neighbour who had
given her concern. He may have been mentally unstable as police labelled him a “madman”.
Then she was in a relationship that she considered abusive. However, these
points were analyzed with considerable compassion by the Refugee Division, and
by the PRRA Officer. They were of the view that there was no basis for a claim
for persecution. In addition, the same points were considered and rejected in
the first H&C application.
[10]
Ms.
Jackson may well be successful on her second H&C application, as she now
has a greater connection with Canada, and she may well be a skilled worker
entitled to be processed through the Canadian consulate in Buffalo. However, I
cannot find that the enforcement officer’s decision not to defer removal would
cause her and her daughter irreparable harm. Thus at some point they may be
able to return. That is not for the enforcement officer to decide.
[11]
Furthermore,
in this case the balance of convenience favours the Minister. In Selliah v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 261, [2004] F.C.J. No. 1200 (QL),
Mr. Justice Evans had this to say:
[21]
Counsel says that since the appellants have no
criminal record, are not security concerns, and are financially established and
socially integrated in Canada, the balance of
convenience favours maintaining the status quo until their appeal is
decided.
[22]
I do not agree. They have had three negative
administrative decisions, which have all been upheld by the Federal Court. It
is nearly four years since they first arrived here. In my view, the balance of
convenience does not favour delaying further the discharge of either their
duty, as persons subject to an enforceable removal order, to leave Canada
immediately, or the Minister's duty to remove them as soon as reasonably
practicable: IRPA, subsection 48(2). This is not simply a question of administrative
convenience, but implicates the integrity and fairness of, and public
confidence in, Canada's system of immigration
control.
[12]
The
fact remains that non-citizens do not have an unqualified right to remain here
(Canada (Minister of
Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711.
The issue is not what the Minister ought to have done, but rather whether what
he did do stands up to a judicial stay analysis.
ORDER
THIS COURT ORDERS that the applicants’ motion for a stay
is dismissed.
“Sean Harrington”
Email this Content