Date: 20070417
Docket: IMM-1470-07
Citation: 2007 FC 398
Toronto, Ontario, April 17,
2007
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
DORIS
PAUL
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
BACKGROUND
[1]
The Applicant seeks a stay of her removal to Grenada scheduled
for April 20, 2007. The underlying application on this motion is her negative Pre-Removal
Risk Assessment (PRRA), dated February 21, 2007, and served on the Applicant together with a Direction to Report on March 27, 2007. (Direction to
Report, in Applicant’s Record, p. 57; PRRA decision, in Applicant’s Record, p.
47-56.)
[2]
The Applicant entered Canada on September 19, 2001. She made a refugee
claim, which was refused in March 2004. The Applicant’s application for leave
and for judicial review of this decision was denied by this Court in August
2004 (IMM-4509-04). (Refugee Protection Division (RPD) decision, in Applicant’s
Record, p. 14-19.)
[3]
The Applicant made a PRRA application on the basis of her fear of
domestic violence at the hands of her ex-partner. This was the same allegation
which was before the RPD. The PRRA was refused on February 21, 2007. The PRRA officer found that the Applicant had not submitted any new evidence to support a
different conclusion from that of the RPD. A review of the documentary evidence
submitted by the Applicant demonstrates that the evidence which is dated
pre-dates her RPD claim. (PRRA decision, in Applicant’s Record, p. 47-56; PRRA
application and submissions, in Applicant’s Record, p. 20-30.)
[4]
The PRRA officer acknowledged that there is evidence showing that
domestic violence continues to be a problem in Grenada; however, the
documentary evidence before the officer also showed that Grenada is making
serious efforts to deal with this problem, including the following:
·
Grenada has various governmental and non-governmental means to
offer protection to women and children facing domestic violence;
·
There is domestic violence legislation which provides for
penalties, jail sentences and restraining orders;
·
A public awareness and sensitization campaign has been put into
place for police and social workers;
·
A Domestic Violence Unit has begun to be set up by the Ministry
of Gender and Family Affairs, which will provide on-site counselling and legal
services;
·
Every police station will have one police officer trained in
domestic violence who will deal with the Unit;
·
Grenada is parliamentary democracy with constitutional rights.
(PRRA decision, in Applicant’s
Record, p. 54.)
[5]
On the basis of the evidence before the officer, the officer
concluded that “although no state can provide safety to every citizen all the
time, I am of the opinion that sufficient safeguards exist in Grenada for the
applicant that would provide her with adequate protection if required.” (PRRA
decision, in Applicant’s Record, p. 55.)
[6]
The Applicant made a humanitarian and compassionate grounds (H&C) application,
which Citizenship and Immigration Canada (CIC) received on February 5, 2007, and which started to be processed on February 20, 2007. (CIC information, in
Applicant’s Record, p. 45.)
[7]
The Applicant has seven children, ranging in ages from 17 to 31.
The youngest child, Barry, who is 17, lives in the United States, with his
father and grandmother. The other four children (Glenda, Denise, Allison, and
Nicole), who are all adults, live in Grenada and have children of their own,
and the Applicant is not in touch with her other two children who are also
adults (Rondell and Vondell). (Applicant’s Affidavit, in Applicant’s Record, p.
8-9, para 14-16.)
ISSUE
[8]
Has the Applicant satisfied the tripartite test warranting a stay of her
removal?
ANALYSIS
SERIOUS
ISSUE
[9]
The Applicant’s assertion that the officer’s failure to refer to
a more recent Response to Information Report (RIR) —i.e., a 2005 instead of a
2003 RIR--does not raise a serious issue. First, the 2005 RIR was not provided
to the officer by the Applicant. (PRRA evidence, in Applicant’s Record, p. 30.)
[10]
Second, the officer did refer to a 2003 RIR which set out various
efforts that Grenada is taking to deal with domestic violence, such as Domestic
Violence Unit, a hotline for women in distress, a women’s shelter. Contrary to
the Applicant’s suggestion, this document recognizes that women continue to
experience problems and that protection is imperfect. (2003 RIR, in Applicant’s
Record, p. 58-61.)
[11]
Moreover, the 2005 RIR does not provide any fundamentally new
information than the 2003 RIR. The Applicant contends that this 2005 document establishes
that domestic violence is a problem in Grenada; however, this was acknowledged
in the 2003 document, and by the PRRA officer. The 2005 document also states
that there is a law which prohibits domestic violence and provides penalties
and “in practice, the court enforced the law.” Although the 2005 document
discusses problems with the law’s implementation, the document nevertheless
concludes as follows:
Grenada faces some serious
challenges in the area of domestic violence. Women in situations of abuse are
not, however, without resources. A woman can seek protection through her
network of family and friends, the police, an NGO such as the LACC,
government-run programs such as Cedars shelter, or with legal remedies such as
pressing charges and seeking protection orders in court.
(2005 RIR, in Applicant’s Record,
p. 64-67.)
[12]
This Court
has considered but rejected similar arguments, dealing with a PRRA officer’s
conclusion on state protection and domestic violence:
[14] The Applicant next argues that the decision was perverse and
was made without regard to the evidence. Specifically, the Applicant submits
that the failure of the PRRA Officer to make explicit reference to the
documentary evidence that indicates a number of serious problems with providing
state protection to victims of spousal abuse.
[15] A finding of a PRRA Officer on country conditions is a
finding of fact which has been held to be subject to review on a standard of
patent unreasonableness (see for example, Kim v. Canada (Minister of Citizenship
and Immigration), 2005 FC 437 at para. 19, 272 F.T.R. 62. Considerable
deference is owed to the PRRA Officer's factual determination that country
conditions in St. Vincent. The Court should only intervene if the decision was
perverse, capricious or made without regard to the evidence.
[16] Once again, I must look at the issue with regard to the role
of the PRRA Officer and the burden of the Applicant. The question for the PRRA
Officer is whether the Applicant has established that the situation has changed
since the RPD rendered its decision. First, I note that, while the documentary
evidence is dated after the RPD decision, it does not contain any reference to
the situation worsening over the "gap" period. Further, the
submissions of counsel made to the PRRA Officer do not identify any changes.
Rather, counsel appears to have merely provided arguments as to why the RPD
erred in its conclusion. The PRRA Officer was, in effect, being asked to
reverse the decision of the RPD on state protection. The evidence and
submissions did not address the question of changed conditions. In
short, the Applicant did not demonstrate that, although she was not found to be
at risk as of the date of the RPD decision, she was now.
[17] Further, the evidence referred to by the Applicant consists
of passages extracted from documents that also include evidence of positive
developments and continuing efforts (with some effectiveness) in addressing the
problems of domestic violence. In her reasons, the PRRA Officer acknowledged
that violence against women continues to be a problem. Thus, I am satisfied
that she understood and appreciated both the positive and negative evidence
before her. Given that this evidence was not personal to the Applicant, the
PRRA Officer did not err by failing to make explicit reference to every
negative comment in the country condition documentation.
(Cupid v. Canada
(Minister of Citizenship and Immigration), 2007 FC 176, [2007] F.C.J. No.
244 (QL).)
[13]
Contrary to the Applicant’s argument, the PRRA officer applied the
proper standard for state protection. The Applicant asserts that the officer’s
reliance on the Kadenko decision is “dated’; however, that decision is a
Federal Court of Appeal decision that is binding and authoritative. It was open
to the officer to refer to this decision and to the principles it stands for.
This decision continues to be relied on by this Court. (Kadenko v. Canada
(Solicitor General) (1996), 143 D.L.R. (4th) 532 (F.C.A.), leave to appeal
to S.C.C. refused, [1996] S.C.C.A. No. 612; reference is also made to Cupid,
above, at para 22.)
[14]
With respect to the Applicant’s reliance on the Mitchell decision, this
Court has stated the following:
[15] The Applicant relied on this Court's decisions in Mitchell
v. Canada (Minister of Citizenship and Immigration), 2006 FC
133, [2006] F.C.J. No. 185 (QL) and in Simpson v. Canada
(Minister of Citizenship and Immigration), 2006 FC 970, [2006] F.C.J. No.
1224 (QL). These cases are easily distinguished because in both cases there was
evidence from a Jamaican government official responsible for women's issues
that women in Jamaica could not be protected from domestic violence. In both
cases that evidence was ignored.
[16] In the present case there is no such admission in respect of Trinidad
and Tobago. Further, there is no evidence or basis to suggest that the Board
failed to consider that there was evidence pro and con state protection.
[17] Under these circumstances, there is no reason to overturn the
Board's conclusions on state protection.
(Ramkissoon v. Canada
(Minister of Citizenship and Immigration), 2006 FC 1071, [2006] F.C.J. No.
1346 (QL).)
[15]
Similarly, in the case at bar, there is no evidence from a
Grenadan official responsible for women’s issues that women in Grenada cannot
be protected from domestic violence.
[16]
Furthermore, this Court has rejected the Applicant’s suggestion
that the state must actually provide protection on numerous occasions. As
Justice J. François Lemieux, cited Justice Frederick Gibson in Canada (Minister of Citizenship
and Immigration) v. Olah, 2002 FCT 595, [2002] F.C.J. No. 785 (QL):
[9] … Gibson J. in Smirnov states at page 5:
… It is a reality
of modern-day life that protection offered is sometimes ineffective. Many
incidents of harassment and/or discrimination can be effected in a manner that
renders effective investigation and protection very difficult. ... In all such
circumstances, even the most effective, well-resourced and highly motivated
police forces will have difficulty providing effective protection. This
Court should not impose on other states a standard of "effective"
protection that police forces in our own country, regrettably, sometimes only
aspire to.
(Emphasis
added.)
(Reference is also made to: Danquah
v. Canada (Minister of Citizenship and Immigration), 2003 FC 832, [2003]
F.C.J. (QL); Syed v. Canada (Minister of Citizenship
and Immigration), (2000) 195 F.T.R. 39; [2000] F.C.J. No. 1556 (QL); Zhuravlvev
v. Canada (Minister of Citizenship and Immigration), [2000] 4
F.C. 3 (T.D.), [2000] F.C.J. No. 507 (QL).)
[17]
Thus, the jurisprudence of this Court and of the Supreme Court of
Canada in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689,
supports the PRRA officer’s understanding that there is adequate state
protection where the state is making serious efforts to provide protection. In Adewumi
v. Canada (Minister of citizenship and Immigration), 2002 FCT
258, [2002 F.C.J. No. 337 (QL), Justice Eleanor Dawson has stated:
[10] …
ii) Where
the state is in effective control of its territory, has military, police and
civil authority in place, and makes a serious effort to protect its citizens,
the simple fact that it is not always successful will not be enough to
establish that victims are unable to avail themselves of state protection.
[18]
As
the Supreme Court confirmed, the state is presumed capable of protecting its
citizens and refugee claimants must provide “clear and convincing confirmation”
of the state’s inability or unwillingness to protect them. The Applicant has
not done so in this case. Moreover, this Court has established that if there is
evidence upon which the tribunal could conclude that state protection is
available to the Applicant, the Court should not intervene. In this case, there
was evidence showing that Grenada was taking active steps
in combating domestic violence. The PRRA officer’s decision is supported by the
evidence and there is therefore no reviewable error. (Jahan v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 987 (F.C.T.D.) (QL); Ward,
above.)
[19]
The
Federal Court of Appeal has stipulated that “a claimant must do more than
simply show that he or she went to see some members of the police force and
that his or her efforts were unsuccessful.” (Kadenko, above.)
[20]
As
the Federal Court of Appeal has reasoned:
When the state in question is
a democratic state, as in the case at bar, the claimant must do more than
simply show that he or she went to see some members of the police force and
that his or her efforts were unsuccessful. The burden of proof that rests on
the claimant is, in a way, directly proportional to the level of democracy in
the state in question: the more democratic the state's institutions, the more
the claimant must have done to exhaust all the courses of action open to him or
her (See Canada (Minister of Employment and Immigration) v. Satiacum (1989),
99 N.R. 171, at p. 176 (F.C.A.), approved by Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689, at p. 725, 103 D.L.R. (4th) 1.)
(Kadenko, above.)
[21]
Further,
it was open to the officer to note that perfect state protection cannot be
guaranteed at all times.
[22]
In
effect, the PRRA officer’s conclusion was reasonably open, was supported by the
documentary evidence, as well as the principles set out by this Court with
respect to state protection.
IRREPARABLE HARM
[23]
The
Federal Court of Appeal has found, on several occasions, that the mere presence
of a serious issue is not, in and of itself, determinative of irreparable harm.
(Selliah v. Canada (Minister of Citizenship and
Immigration), [2004] F.C.J. No. 1200
(F.C.A.) (QL); El Ouardi v. Canada (Solicitor General), 2005 FCA
42, [2005] F.C.J. No. 189 (QL); Sivagnanansuntharam
v. Canada
(Minister of Citizenship and Immigration), 2004 FCA
70, [2004] F.C.J. No. 325 (QL); Tesoro v. Canada
(Minister of Citizenship and Immigration), 2005 FCA
148, [2004] F.C.J. No. 698 (QL).)
[24]
Similarly,
there have been cases of this Court which have held that, if the underlying
application on a PRRA is moot, this constitutes irreparable harm. Nevertheless,
the Federal Court of Appeal has rejected this argument on several occasions. (Selliah,
above, at para. 20; El Ouardi, above, at para 8.)
[25]
As
Justice Marshall Rothstein in El Ouardi, above, held, on behalf of the
Federal Court of Appeal:
[8] The appellant argues that her appeal will be rendered
nugatory if the stay is not granted, resulting in irreparable harm. The
difficulty with the argument that an appeal being rendered nugatory amounts to
irreparable harm is that if it is adopted as a principle, it would apply to
virtually all removal cases in which a stay is sought and would essentially
deprive the Court of the discretion to decide questions of irreparable harm on
the facts of each case. In some cases, the fact that an appeal is rendered
nugatory will amount to irreparable harm. In others, it will not. The material
indicates that the appellant's husband may apply to sponsor her return to Canada.
While removal will cause hardship, it is not clear that rendering the appeal
nugatory will result in irreparable harm.
[26]
This
Court has made similar findings in numerous cases. For example, in Akyol v. Canada (Minister of Citizenship and Immigration), 2003 FC 931, [2003]
F.C.J. No. 1182 (QL), Justice Luc Martineau (who also decided Figurado v. Canada
(Minister of Citizenship and Immigration), 2005 FC
347, [2005] F.C.J. No. 458 (QL)), stated as follows:
[11] Sixth, the
deportation of individuals while they have outstanding leave applications
and/or other litigation before the Court, is not a serious issue nor does it
constitute irreparable harm: Ward v. Canada (Minister of Citizenship and
Immigration), [1997] F.C.J. No. 86 (T.D.) at para. 12; and Owusu v. Canada (Minister of Citizenship and
Immigration),
[1995] F.C.J. No. 1166 (T.D.). I also note that the application for leave and
judicial review will continue regardless of where the applicants are located,
and that they can provide instructions to counsel as to how to proceed with the
litigation from the U.S. or, should they end up there,
Turkey…
(Reference
is also made to: Kim v. Canada (Minister of Citizenship
and Immigration), 2003 FCT
321, [2003] F.C.J. No. 452 (QL); Ryan v. Canada
(Minister of Citizenship and Immigration), 2001
FCT 1413, [2001] F.C.J. No. 1939 (QL), at para. 8.)
[27]
In
addition, Justice
Judith Snider considered but rejected a similar argument to the one advanced by
the Applicant and ultimately concluded that the application is not rendered
nugatory by removal. In Nalliah v. Canada (Minister of
Citizenship and Immigration), [2005] 3 F.C.R. 210, [2004] F.C.J. No.
2005 (QL), Justice Snider stated the following:
[30] The second branch of Mr. Nalliah's argument is that the loss
of the right to continue the litigation constitutes irreparable harm. Contrary
to these submissions, if the injunction is refused, their right to an effective
remedy will not be rendered nugatory. As Mr. Justice O'Reilly stated in Kim
v. Canada (Minister of Citizenship and Immigration) (2003), 33 Imm.
L.R. (3d) 95 (F.C.T.D.), at paragraph 9: "nothing in the Act or the Rules
would interfere with the entitlement of a PRRA applicant, who has been removed
from Canada and who is successful on judicial review, to have that application
reconsidered".
[31] In Selliah v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 261, at paragraph 20, Justice Evans
of the Court of Appeal stated:
Since the appeal can be ably conducted by experienced counsel in the
absence of the appellants and since, if the appeal is successful, the
appellants will probably be permitted to return to Canada at public expense, I
cannot accept that removal renders their right of appeal nugatory.
[32] The cases of Suresh
and Resulaj, referred to by Mr. Nalliah may be distinguished on the
basis that, in both of those cases, there was significant evidence supporting a
personalized risk. From a review of the jurisprudence, I conclude that
irreparable harm cannot be solely founded on difficulty in pursuing legal
rights of challenge once removed from Canada.
[28]
In
addition, it was clearly not the intent of Parliament to allow all negative
PRRA recipients to remain in Canada, pending the outcome of any litigation
related to their PRRA decisions. Parliament chose to provide a statutory stay
of removal pending the outcome of an application for leave of a negative
refugee decision by the RPD. Parliament further envisioned statutory stays in
certain specified circumstances related to PRRAs, as set out in R. 232 of Immigration
and Refugee Protection Regulations, SOR/2002-227 (Regulations), none of
which included applications for leave challenging negative PRRA decisions. (Regulations,
ss. 231-232.)
[29]
Parliament
clearly intended that persons, whose PRRA applications had been rejected, could
be removed. This is also consistent with s.48 of the IRPA, which provides that
the Minister is obligated to effect valid removal orders as soon as practically
possible. Any other interpretation would place the rights of a PRRA applicant,
ahead of the legal obligation on the Minister, rights and obligations which
Parliament has intentionally balanced through the statutory provisions in IRPA.
[30]
Thus,
the proper, persuasive, and authoritative approach is the one articulated by
the Federal Court of Appeal that has held that removing an applicant from Canada while his appeal of his
negative PRRA is pending, does not render his/her rights nugatory. (Selliah,
above, at para. 20; El Ouardi, above.)
[31]
Even
if the Court accepts that a PRRA application for judicial review may be moot if
the applicant has been removed, this does not necessarily result in irreparable
harm. This Court and the Federal Court of Appeal have indicated that there must
be something more in order to establish irreparable harm-e.g., evidence of
personalized risk. As Justice Dawson determined in Ryan, above: “…it seems to me that something
more than mootness must be established in order to constitute irreparable harm.
Otherwise, by definition irreparable harm would exist whenever the validity of
a decision not to defer removal is put in issue.”
[32]
The
Federal Court of Appeal has also confirmed that the possibility of mootness
cannot always equate to irreparable harm because every stay would then give
rise to irreparable harm. This is certainly not the intention of Parliament, which
specifically chose not to include outstanding PRRA litigation as a basis for a
statutory stay. (El Ouardi, above.)
[33]
The
Applicant’s H&C application, made in January 2007, will continue to be
processed in the Applicant’s absence. There is no evidence to support the
Applicant’s contention that her H&C application will be refused if she is
removed.
[34]
The
Applicant suggests that she has nowhere to live in Grenada; however,
she has four adult children who live in Grenada, and several
grandchildren. She has a community there.
[35]
In
effect, the Applicant has not met the test for irreparable harm. This Court has
held that “irreparable harm must not be speculative nor can it be based on a
series of possibilities. The Court must be satisfied that the irreparable harm
will occur if the relief sought is not granted”. (Akyol, above, at para
6-7.)
[36]
There
is no substantive evidence establishing that the Applicant will be at risk if
she is returned to Grenada. It is noteworthy that her allegations of risk
of have twice been rejected. Her refugee claim was refused, and this Court
denied leave on her application for leave and for the judicial review. In
addition, her PRRA was refused. In this regard, in Salman v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 507, [2001] F.C.J. No. 785 (QL), at
para. 6, this
Court has indicated: “The applicant was afforded three opportunities to show
that he would face personal risk if he were deported to his country of origin
and was not successful. Those three successive assessments, made by three
different immigration officers are not unreasonable and cannot be disregarded…”
(Reference
is also made to: Tudila-Litvin v. Canada (Minister for Public
Safety and Emergency Preparedness), 207 FC 105, [2007] F.C.J. No. 182 (QL).)
[37]
Further,
in Melo
v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 403, as stated by Justice
Denis Pelletier:
[21] …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. (Emphasis added.)
BALANCE OF
CONVENIENCE
[38]
Finally,
contrary to the Applicant’s contention, the balance of convenience favours the
Respondent. Section 48 of the IRPA provides that an enforceable removal order
must be enforced as soon as is reasonably practicable.
[39]
The
Applicant has had a negative refugee claim and a negative PRRA. In this regard,
the words of Justice John Maxwell Evans in Selliah, above, writing for
the Federal Court of Appeal, are apt:
[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.
JUDGMENT
THIS COURT ORDERS that this motion
for a stay of removal be dismissed.
“Michel M. J. Shore”
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