Date: 20070416
Docket: IMM-1431-07
Citation: 2007 FC 395
Toronto, Ontario, April 16,
2007
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
SERGIY
GOLUBYEV
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
BACKGROUND
[1]
The Applicant, a citizen of the Ukraine, has filed a motion for a
stay of the execution of the removal order against him. The underlying
applications for leave challenge the Pre-Removal Risk Assessment (PRRA)
decision and the negative Humanitarian and Compassionate decision (H&C). In
both his PRRA and H&C, the Applicant alleged fearing persecution as a
Baptist in the Ukraine. (PRRA, Applicant’s Motion Record, pp. 450-457; H&C
Decision, Applicant’s Motion Record, pp. 487-492.)
ISSUE
[2]
The
test for granting a stay is well established. The Applicant must establish that:
(a) There is a
serious question to be tried;
(b) The moving
party would, unless the injunction is granted, suffer irreparable harm; and
(c) . The balance
of convenience favours the moving party.
(Toth v. Canada (Minister of Employment
and Immigration) (1988), 86 N.R. 302 (F.C.A.), [1988] F.C.J. No. 587 (QL); R.J.R.-MacDonald
Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311.)
[3]
The
requirements of the tripartite test are conjunctive. That is, the Applicant
must satisfy all three branches of the test before this Court can grant a stay
of proceedings. (Toth, above; Marenco
v. Canada (Minister of Citizenship and Immigration) (1994), 86 F.T.R. 299,
[1994] F.C.J. No. 1690 (QL).)
ANALYSIS
SERIOUS ISSUE
[4]
The
Applicant is arguing that the H&C Officer’s assessment of risk was
erroneous because she applied the test for risk under sections 96 and 97 of the
Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) and did
not determine whether the risk faced by the Applicant constituted unusual,
undue, or disproportionate hardship. This argument is without merit, as the
Officer assessed the risk together with other H&C factors, and following
this analysis, made a determination that these factors did not constitute
unusual, undue or disproportionate hardship:
I am not satisfied that the
applicant has presented sufficient humanitarian and compassionate grounds to
warrant an exemption from the immigrant visa requirement. I am not satisfied
that complying with legislative requirements will result in the applicant
facing unusual, undeserved or disproportionate hardship. Therefore, his request
is refused.
(Reasons, Applicant’s Motion Record, p. 491.)
[5]
In
the risk analysis, the Officer did not find that the Applicant’s risk would
constitute undue hardship, the Officer, also, found that the Applicant had not demonstrated
that he was personally at risk in the Ukraine. After making this
determination and assessing the other humanitarian factors, such as the
Applicant’s establishment in Canada, the Officer determined that these factors
do not amount to undue or disproportionate hardship. The Officer did, in fact,
render his assessment with thorough reasons. (Reasons, Applicant’s Motion Record,
pp. 490-491.)
[6]
In
his H&C application, the Applicant argued that he should be granted an
H&C exemption due to a risk to himself in the Ukraine because he is a
Baptist, and as he is established in Canada. The Officer properly
considered these factors in reaching her determination that this particular
Applicant would not suffer unusual or undue hardship should he be required to
apply to Canada through the
normal immigration avenues. Specifically, the Officer noted the following
factors:
(a) The Applicant alleged the same
risk of persecution in his refugee claim, his PRRA and his H&C. The
Applicant was found not to be at risk in both his previous refugee claim and in
his PRRA. While the Officer noted that she was not bound by the Refugee
Protection Division (RPD) findings, she found that the RPD is an expert body in
the determination of risk of persecution and thus determined that considerable
weight would be given to the Board’s findings with respect to risk.
(b) The recent
documentary evidence does not support the Applicant’s assertion that there is
widespread discrimination against Baptists. Rather, the Officer found that
discrimination exists at some isolated local levels.
(c) The country reports indicate
that Government sought, at all levels, to protect the right to freedom of
religion and did not tolerate its abuse; however, instances of minority
religions experiencing difficulty in buying and leasing property, did exist
according to the evidence.
(d) The country reports indicate
that the Evangelical Baptist Union of Ukraine has grown the most rapidly since
independence, with more than 500,000 members. Other minority Christian groups
have also increased their membership.
(e) The Applicant may have
experienced problems some 7-20 years ago in the Ukraine but the
concept of risk is forward looking. There was insufficient evidence that he
would be at risk today.
(f) While the Applicant has a
certain degree of establishment in Canada, such as continuous
employment, since he arrived in 1999, he has been out of status since 2002 and
has had no legitimate expectation that he would be allowed to stay.
(g) The Applicant is a 45 year old
man who has spent the majority of his life in the Ukraine. He has
shown an ability to adapt and succeed. There was insufficient evidence that
returning to his country of origin would constitute undue hardship.
(h) The Applicant’s belief that he
will not qualify for overseas processing is not undue or unusual hardship.
(i) The Applicant has no family in Canada.
(Reasons, Applicant’s Motion Record, pp. 489-491.)
[7]
As
can be seen from the thorough analysis described above, the Officer’s
determination that this Applicant had failed to demonstrate unusual, undue or
disproportionate hardship that would warrant granting an H&C exemption does
not raise a serious issue. The Applicant’s risk has been assessed in three
separate applications, and each time the decision-maker has found the Applicant
not to be at risk; furthermore, the Applicant’s submission that he has a certain
degree of establishment in Canada is not evidence that leaving would cause
undue or disproportionate hardship. This Court has repeatedly held that the
hardship suffered by the Applicant must be more than mere
inconvenience of the predictable costs associated with leaving Canada, such as
selling a house or a car, leaving a job or family or friends. The Officer’s
determination that there was nothing unusual in this case was reasonable.
[8]
Contrary
to the Applicant’s submission, the Officer’s determination that the Applicant’s
establishment should be given little weight in part because the Applicant was
without status and had no expectation that he would be allowed to stay in
Canada, is an appropriate and relevant consideration. This Applicant assumed
the risk of establishing himself in Canada while his immigration
status was uncertain and knowing that he may be required to leave. Now that he
is required to leave and apply for landing from outside Canada, given that
he did assume this risk, the Applicant cannot now contend, on the facts of his
case, that the hardship is unusual, undeserved or disproportionate. This
H&C determination is reasonable and should not be disturbed. (Uddin v Canada (Minister of
Citizenship and Immigration), 2002 FCT 937, [2002] F.C.J. No. 1222 (QL),
para. 22.)
[9]
The
content of the PRRA decision is also eminently reasonable. The PRRA Officer
understood that her analysis under subsection 113(a) of the IRPA was
restricted to new evidence presented that arose after the rejection of the
refugee decision, or was not reasonably available at that time. She found that
this Applicant, who alleged the same risk of persecution as a Baptist in the
Ukraine as was alleged in his refugee claim, failed to address the concerns
raised by the RPD. Specifically, the Officer conducted a thorough analysis of
the evidence, and made the following nuanced and reasonable findings:
(a) The PRRA application reiterates
the same facts articulated at the refugee hearing.
(b) The new country documents
contain updates on the information on country conditions in the Ukraine already
considered by the RPD. The documents do not address or rebut any of the
concerns raised by the RPD, including the determination that the documentary
evidence failed to show that the Applicant would be at risk of persecution as a
Baptist.
(c) The documents indicate that
there are isolated problems of religious discrimination at local levels. The
government does not condone such practices.
(d) The Applicant failed to rebut
the presumption of state protection. The U.S. Department of State report stated
that the government does not tolerate religious discrimination. While there are
some problems with property restitution, the government facilitated the return
of some communal properties.
(e) The All-Ukraine Council of
Churches and Religious Organizations is an influential, interconfessional
government advisory body. The Council of Evangelical Protestant Churches also
provided a forum to enhance coordination between various denominations, resolve
disputes and discuss legislation. This council represents 80% of the country’s
Protestant organizations.
(f) Protestant Churches have grown
rapidly in the years since independence. In particular, the Evangelical Baptist
Union of Ukraine has grown the most rapidly since independence, with more than
500,000 members. Other minority Christian groups have also increased their
membership.
(Reasons, Applicant’s Motion Record, pp. 454-455.)
[10]
The
Applicant has taken issue with the state protection analysis in the PRRA
decision. The Applicant is arguing that the Officer has mistaken the state’s
theoretical willingness to protect with actual adequate protection. There is no
merit to this argument, as the findings above demonstrate that there were
actual avenues of protection for those experiencing religious discrimination in
the Ukraine, and not
simply theoretical laws in place to protect them. The Officer, for example,
noted that several established organizations advocate for and resolve disputes
on behalf of Protestant Christians. In addition, the government is assisting to
resolve property disputes. (Reasons, Applicant’s Motion Record, p. 455.)
[11]
The
fact that the Applicant would weigh the totality of evidence differently than
the Officer does not raise a serious issue. Indeed, the fact that the Officer
cited and discussed both the positive and negative aspects of the evidence,
acknowledging that there are cases of religious discrimination, demonstrates a
thorough and reasonable analysis of evidence; furthermore, the fact that the
Applicant has pointed to cases where the Court found state protection in the
Ukraine to be questionable, is fully considered. Nevertheless, this Court has also
upheld decisions relying on the availability of state protection in the Ukraine. Each case
must be decided on its own facts and the decision in this case is considered
reasonable. There is no serious issue. (Zlobinski v. Canada (Minister of
Citizenship and Immigration), 2007 FC 305, [2007] F.C.J. No. 424 (QL); Keller
v. Canada (Minister of
Citizenship and Immigration, 2003 FC 1063, [2003] FCJ No. 1346.)
IRREPARABLE
HARM
[12]
This
Court has held that irreparable harm is a strict test in which serious
likelihood or jeopardy to the applicant’s life or safety must be
demonstrated. In this case, the Applicant’s submissions on irreparable harm
include the same risk of persecution he alleged he faced in the Ukraine, already
advanced in his refugee claim, his PRRA application, and his H&C
application.
[13]
The
Applicant has had his risk as a Baptist assessed on three separate occasions,
in his refugee claim, in his H&C and in his PRRA, and each time he was
found not to be at risk in the Ukraine. This alleged risk,
already reasonably assessed, does not meet the test for irreparable harm. (Manohararaj v. Canada
(Minister of Citizenship and Immigration), 2006 FC 376, [2006] F.C.J.
No. 495 (QL); Sesay v. Canada (Minister of
Citizenship and Immigration), IMM-912-07, IMM-914-07.)
[14]
The
Applicant relies on the decision of Justice Luc Martineau in Figurado v. Canada (Minister of
Solicitor General), 2005 FC 347, [2005] F.C.J. No. 458 (QL), to argue
that his application for judicial review (assuming that leave is granted) will
be moot if he is removed. Most recently, Justice Frederick Gibson has released
another decision that also concluded that the applications for judicial review
of negative PRRA was moot, since the person had been removed. (Nalliah v. Canada (Minister of
Citizenship and Immigration), 2005 FC 759, [2005] F.C.J. No. 956 (QL).)
[15]
For the
purposes of this motion, this Court (including Justice Martineau, who decided Figurado,
above), has held that an individual with an outstanding leave application can
nevertheless be removed. For example, as Justice James O’Reilly found in Kim v. Canada (Minister
of Citizenship and Immigration), 2003 FCT 321, [2003] F.C.J. No. 452
(QL), at paragraph 9:
“…nothing in the Act or the Rules that 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..” Further, as Justice
Martineau decided in Akyol:
[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.
(Akyol v. Canada (Minister
of Citizenship and Immigration), 2003 FC 931, [2003] F.C.J. No.
452 (QL), and cases cited therein; Ryan v. Canada (Minister of Citizenship
and Immigration), [2001] F.C.J. No. 1939 at para. 8.)
[16]
This
Court and the Court of Appeal routinely dismiss stays where there are
outstanding applications for leave and for judicial review or appeals,
including applications or appeals of negative PRRAs. (Selliah v. Canada (Minister
of Citizenship and Immigration), 2004 FCA 261, [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 (F.C.A.) (QL); Tesoro v. Canada (Minister
of Citizenship and Immigration), 2005 FCA 148 (F.C.A.).)
[17]
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. In Selliah,
above, Justice John Maxwell Evans stated, at paragraph 20: “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.”
[18]
Further,
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 relied on Kim, above, and on the Court of Appeal’s
decision in Selliah, above, and noted , as follows:
[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.
[19]
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, none of which included
applications for leave challenging negative PRRA decisions. (Immigration and
Refugee Protection Regulations, SOR/2002-227 (Regulations), ss. 231-232.)
[20]
Therefore,
Parliament 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 an
unsuccessful PRRA applicant, ahead of the legal obligation on the Minister,
rights and obligations which Parliament has intentionally balanced through the
statutory provisions in the IRPA. Justice Gibson acknowledged this in Nalliah,
above, at paras. 22-23.
[21]
Thus,
the statement that redetermination of a PRRA application is rendered nugatory
by removal, is contrary to the IRPA and the Regulations, as well as the jurisprudence
of the Federal Court of Appeal. Accordingly, in this case, the view that
removal will render the application for judicial review moot is not considered
valid.
[22]
Justice
Martineau’s decision in Figuardo, above, and Justice Gibson’s decision
in Nalliah, above, do not imply that irreparable harm will result from
the possibility of a moot application. Rather, since Justice Gibson agrees with
Justice Snider’s finding, he was clearly not of the view that his finding of
mootness equates with a finding of irreparable harm. Furthermore, he bases his
decision on Regulation 232 and the fact that Parliament did not see fit to
extend statutory stays to PRRA litigants. Finally, the question Justice Gibson
certified distinguishes between irreparable harm in the stay context and
mootness in the judicial review context. That is, the certified question
clearly envisions the possibility that a person will be removed because their
stay was dismissed and no irreparable harm was established, and concurrently,
that the Court may grant leave and then find that the application for judicial
review is moot.
[23]
Accordingly,
in analyzing the reasoning of Justice Martineau in Figurado, above, and
Justice Gibson in Nalliah, above, regarding the mootness of a PRRA
application for judicial review, this does not necessarily result in
irreparable harm. Justice Gibson’s decision and certified question suggests
that irreparable harm –in particular, evidence that establishes personalized
risk--must be established irrespective of the mootness issue.
[24]
This
is precisely what Justice Eleanor 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.”
[25]
The
Federal Court of Appeal has also suggested 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, and it could not be the intention of Justice Martineau
(who decided both Akyol and Figurado) or Justice Gibson in Nalliah.
Writing for the Federal Court of Appeal, Justice Marshall Rothstein in El
Ouardi, above, stated as follows:
[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]
Therefore,
for these reasons, the Applicant, in this case, has not established irreparable
harm.
BALANCE OF CONVENIENCE
[27]
The
Applicant has not met the third aspect of the tri-partite test, insofar as the
balance of convenience favours the Minister and not the Applicant.
[28]
Section
48 of the IRPA provides that an enforceable removal order must be enforced as
soon as is reasonably practicable.
[29]
The
Applicant is seeking extraordinary equitable relief. It is trite law that the
public interest must be taken into consideration when evaluating this last
criterion. In order to demonstrate that the balance of convenience favours the
Applicant, the latter should demonstrate that there is a public interest not to
remove him as scheduled. (R.J.R.-MacDonald, above; Blum v.
Canada (Minister of Citizenship and Immigration), (1994) 90 F.T.R. 54, [1994]
F.C.J. No. 1990 (QL), per Justice Paul Rouleau.)
[30]
As
stated by the Justice John Sopinka in Canada (Minister of Employment
and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711, at 733:
The most fundamental principle of
immigration law is that non-citizens do not have an unqualified right to enter
or remain in the country.
[31]
The
Applicant has not demonstrated that the balance of convenience favours the
non-application of the law nor outweigh the public interest. The Applicant has
had the benefit of a refugee hearing, a Pre-Removal Risk Assessment, and an
H&C application. The balance of convenience favours the Minister in these
circumstances.
JUDGMENT
THIS COURT ORDERS that the stay of
removal be dismissed.
“Michel M.J. Shore”
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