Date: 20070416
Docket: IMM-1509-07
Citation: 2007 FC 388
Toronto, Ontario, April 16, 2007
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
DANIEL
MALYY; ROKSANA ANTYPOV
Applicants
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is a motion for an injunction by which the Applicants seek
to restrain the Respondent from carrying out their removal to Israel, scheduled
for April 16, 2007.
[2]
The Applicants came to Canada in December 2002 and made a refugee
claim three weeks after arrival. The Applicants were determined not to be
Convention refugees in April 2004 in part due to the lack of credibility of the
principal Applicant; this Court affirmed that decision on judicial review. The
Applicants were found not to be at risk in Israel and received a negative
Pre-Removal Risk Assessment (PRRA) on January 9, 2007. On January 15, 2007, the
Applicants submitted a s.25(1) application for inland processing of an
application for landing. (Applicant’s Record p. 20; Antypov v. Canada (Minister of Citizenship
and Immigration),
2004 FC 1589, [2004] F.C.J. No. 1931 (QL).)
[3]
The Applicants were served with removal arrangements on February
21, 2007. Their departure, originally scheduled for March 13, 2007 was delayed
until April 16, 2007. On February 28, 2007 the Applicants requested a deferral
of removal. (Applicant’s Record pp. 12; 18.)
[4]
The removals officer denied the Applicants’ request. The officer
found that the Applicants’ medical issues could be addressed in Israel, relying
on a medical opinion that medical care in Israel would be equivalent to that
which the Applicant and her son would receive in Canada. The officer found that
the Applicant had ample time to make arrangements for her return to Israel and
that there was no basis for allowing deferral on the basis of allegations of
risk. The recently submitted s. 25(1) application would be outstanding for
several years and was not a basis for deferral. With respect to the Applicant’s
Canadian child, the officer recognized the determination of the principal
Applicant, who had decided that the child’s interests were in accompanying her
to Israel. (Applicant’s Record pp. 20-22.)
ISSUES
(a)
Have
the Applicants met the tri-partite test for an injunction staying their removal
from Canada? The underlying
litigation, an application for leave and judicial review of the refusal to
defer removal does not raise serious issues;
(b)
Have
the Applicants demonstrated that they will suffer irreparable harm if removed?
(c)
Does
the balance of convenience favour the Respondent?
ANALYSIS
Test for injunction
[5]
There is a tri-partite test for determining whether interlocutory
injunctions should be granted pending a determination of a case on its merits,
namely, (i) whether there is a serious question to be tried; (ii) whether the
litigant who seeks the interlocutory injunction would, unless the injunction is
granted, suffer irreparable harm; and (iii) where does the balance of
convenience lie, in terms of which of the two parties will suffer the greater
harm from the granting or refusal of an interlocutory injunction pending a
decision on the merits. (Toth
v. Canada (Minister of Employment
and Immigration)
(1988), 86 N.R. 302 (F.C.A.), [1988] F.C.J. No. 587 (QL).)
[6]
Since the underlying litigation is an application for leave and
judicial review in respect of a deferral request, the normally ‘low threshold’
to meet in establishing a serious issue does not apply; the Court should
undertake a close look at the merits of the underlying litigation. (Wang v. Canada
(Minister of Citizenship and Immigration), 2001 FCT 148, [2001] F.C.J. No.
295 (QL).)
[7]
The requirements of the tripartite test are conjunctive. That is,
the Applicants must satisfy all three branches of the test before this Court
can grant a stay of removal.
Serious Issue
[8]
Removals officers, who have a duty to enforce removal orders,
have only a limited discretion to defer removal. The only jurisdiction of the
officer is to decide if removal is ‘reasonably practicable’ in the circumstances.
(Simoes v. Canada (Minister of Citizenship and Immigration),
2000 F.C.J. No. 936 (QL).)
[9]
In the instant case, the removals officer dealt with and
considered the Applicant’s deferral request and reasonably determined that
removal was ‘reasonably practicable’. The underlying litigation is without
merit and the Applicants accordingly have failed to meet the first branch of
the tri-partite test:
[10]
In attempting to show that serious issues arise from the decision
of the removals officer, the Applicants have filed material and relied on
evidence which was not before the removals officer. It is not open to the
Applicants to add to their deferral request after the fact of the decision.
[11]
The Applicants argue that the officer erred in not appreciating
that the Applicants will allegedly be unable to access the Israeli health care
system, since the Applicants allegedly ‘cannot afford’ medical insurance in
Israel. Leaving aside the credibility of that claim, the Applicants’ deferral
request was not based on an inability to access health care due to
impecuniosity. That claim, with accompanying evidence in the form of the
principal Applicant’s affidavit, is advanced for the first time before this
Court and is an improvisation on the Applicants’ deferral request. It is inappropriate
for the Applicants to attempt to satisfy the ‘serious issue’ branch of the
tri-partite test by relying on evidence which was not before the removals
officer. (Applicant’s Record p. 12-17.)
[12]
Similarly, the Applicants’ submission at paragraph 15 and 16 of
the memorandum on the ‘special circumstances’ of the Applicants are based on
evidence which the Applicants did not submit to the officer but have submitted
to this Court for their deferral request; for example, evidence of a concern
relating to the language of school instruction in Israel formed no part of the
deferral request; that matter is raised by the principal Applicant in her
affidavit before this Court. Accordingly, no serious issue is raised by the
submission.
[13]
With respect to the best interests of the children and the
Applicants’ claim—relying on an interlocutory ruling of this Court--that the
Convention of the Rights of the Child has been incorporated into domestic law
through paragraph 3(3)(f) of the Immigration and Refugee Protection
Act, S.C. 2001, c. 27 (IRPA), the Federal Court of Appeal has settled the
matter to the contrary of the Applicants’ submissions: the Convention has not
been incorporated into domestic law. (De Guzman v. Canada
(Minister of Citizenship and Immigration), 2005 FCA 436, [2005] F.C.J. No.
2119 (QL).)
[14]
The removals officer considered the best interests of the
children in this matter and it is the principal Applicant who has determined
that her Canadian child, who was born two weeks after her arrival in Canada (Affidavit
of Roksana Antypov, para. 5; Applicants’ Motion Record p. 8) will accompany her
to Israel.
[15]
Deferral in favour of a decision on the s. 25(1) application,
which was submitted virtually on the eve of the Applicants’ removal, would
result in a protracted delay of several years duration and the officer was
entitled to decline to accede to the Applicants’ request for a protracted
deferral.
[16]
In essence, the Applicants do not seek a delay of their removal,
but seek to have it, in effect, cancelled. That remedy is not available from
the removals officer.
Irreparable harm
[17]
The purposes of a stay of removal, "irreparable harm"
is a very strict test. It implies the serious likelihood of jeopardy to the
applicant's life or safety. Irreparable harm is very grave. It must be more
than unfortunate hardship, including breakup or dislocation of family. (Duve
v. Canada (Minister of Citizenship and Immigration)
(1996), (March 26, 1996) Doc. No. IMM-3416-95 (F.C.T.D.); Melo v. Canada
(Minister of Citizenship and Immigration), [2000] F.C.J. No. 403
(F.C.T.D. (QL), paras. 20 – 21.)
[18]
In Melo, the Court held:
[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.
[19]
The Applicant has failed to establish irreparable harm. In Selliah v.
Canada (Minister of Citizenship and Immigration), 2004 FCA
261, [2004] F.C.J. No. 1200 (QL), Justice John Maxwell Evans, states:
[13] The removal of persons who have remained in Canada without
status will always disrupt the lives that they have succeeded in building here.
This is likely to be particularly true of young children who have no memory of
the country that they left. Nonetheless, the kinds of hardship typically
occasioned by removal cannot, in my view, constitute irreparable harm for the
purpose of the Toth rule, otherwise stays would have to be granted in
most cases, provided only that there is a serious issue to be tried: Melo v.
Canada (Minister of Citizenship and Immigration) (2000), 188 F.T.R. 39.
…
[15] The social and economic roots that the appellants have
started to put down in Canada during the nearly four years that they have
legitimately pursued all legal means of obtaining permanent residence status
cannot in themselves provide the basis for a finding that the appellants'
removal before their appeal is decided will cause them irreparable harm. If
their appeal is successful, they will probably be permitted to return to Canada
pending the new determination of their PRAA application.
[20]
The Applicants’ evidence of irreparable harm is evidence of the emotional
impact of family separation and dislocation. While these effects are no doubt
real, they are also common in immigration matters and, were they sufficient on
their own to make out irreparable harm; stays would be granted in most cases.
Accordingly, this evidence is insufficient to demonstrate irreparable harm for
the purposes of a stay of removal.
Balance of Convenience
[21]
The inconvenience that the Applicants may suffer as a result of his
removal from Canada does not outweigh the public interest in executing removal
orders as soon as reasonably practicable in accordance with s. 48 of the IRPA.
[22]
The public interest is to be taken into account and weighed
together with the interests of private litigants. (Manitoba (Attorney General)
v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110.)
[23]
The
balance of any inconvenience which the Applicants may suffer as a result of
their removal from Canada does not outweigh the public interest which the
Respondent seeks to maintain in the application of the IRPA, specifically the
interest in executing deportation orders as soon as reasonably practicable. (IRPA,
s. 48.)
JUDGMENT
THIS COURT ORDERS that the motion
for an order to stay the removal be dismissed.
“Michel M. J. Shore”
Email this Content