Date: 20070508
Docket: IMM-3889-06
Citation: 2007 FC 497
Ottawa, Ontario, May 8, 2007
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
GERMAN
A. LONDONO ECHEVERRY
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the
Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of decisions
by Ms. Simone T. Smith, Enforcement Officer, Canada Border Services Agency,
(the Enforcement Officer), dated July 6 and 12, 2006, in which the
Enforcement Officer refused the Applicant’s requests for a deferral of removal.
ISSUE
[2]
Were
the decisions of the Enforcement Officer patently unreasonable?
[3]
For
the reasons that follow, I find that the decisions are not patently unreasonable.
Consequently, the present application for judicial review shall be dismissed.
BACKGROUND
[4]
The
applicant is a citizen of Columbia, born on February 27,
1960, in the city of Trojillo-Valle. He first came to Canada on July 15,
1991 and claimed refugee status. However, in 1992, he was found to be excluded
from the definition of a Convention refugee pursuant to Article 1F(a), in light
of his activities as a former member of a guerrilla movement known as M-19. He
was subsequently removed from Canada in 1995.
[5]
The
applicant returned to Canada on August 4, 2000 and made a second
refugee claim that same day. He remained faithful to his accounts of his
participation in M-19 and again he was deemed excluded pursuant to Article 1F(a).
The applicant exhausted a series of immigration procedures available to him, in
order to remain in Canada. These include the following:
§
September
2002: Applicant made a Pre-Removal Risk Assessment (PRRA);
§
April
10, 2003: First negative, PRRA decision. The applicant’s deportation was
stayed pending the outcome of his application for leave judicial review;
§
September
18, 2003: Judicial review of the first negative PRRA decision was allowed and
the PRRA was sent back for re-determination;
§
January
11, 2005: Second negative PRRA, from which a leave application for judicial
review was filed on February 3, 2005;
§
May
27, 2005: Application for judicial review of the second negative PRRA decision
was dismissed;
§
January
15, 2006: Application for permanent residence under Humanitarian and
Compassionate (H&C) grounds denied;
§
April
2006: New H&C application;
§
May
30, 2006: Application for judicial review of the negative H&C application,
dated January 15, 2006, was dismissed;
§
July
4, 2006: Pre-Removal Interview with Direction to Report for removal on July 18,
2006. Applicant indicated he would like to purchase his own ticket and the
Enforcement Officer gave him a call in notice for July 12, 2006 to
provide a one-way ticket to Columbia dated no later than
July 31, 2006. The applicant did not provide a ticket. He was given a PRRA
application to complete upon his request;
§
July
5, 2006: Applicant made a request for deferral, which was refused by the Enforcement
Officer, on July 6, 2006;
§
July
11, 2006: Applicant made a second request for deferral, which was
refused on July 12, 2006.
[6]
It
is these two refusals to grant a deferral of the applicant’s removal, which
form the basis of the present application for judicial review.
DECISIONS UNDER REVIEW
[7]
The
first deferral request dated July 5, 2006, was dismissed because the applicant
did not provide evidence to show that he was subject to any risk directly
related to him. The Enforcement Officer also refused this request
notwithstanding the applicant’s outstanding application for permanent residence
based on H&C grounds, which was filed in April 2006 and was therefore not
imminent. Finally, the Enforcement Officer had an obligation under section 48
of the Act to enforce removals as soon as reasonably practicable.
[8]
The
second deferral request, dated July 11, 2006, was similarly dismissed since the
evidence provided in the H&C application regarding the applicant’s cousin
did not support the conclusion that the applicant is subject to any direct risk.
This information was dated August 2005 and anterior to the H&C application.
In addition, the deferral was not granted since there was no evidence to
indicate clear dependency between the applicant and his sons. Furthermore, the
Enforcement Officer indicated that a deferral is meant to be a temporary
measure prior to removal and does not accord the possibility of permanent
residence status. Finally, there is a statutory obligation to otherwise
expedite removal orders.
RELEVANT LEGISLATION
[9]
The
statutory basis of the Enforcement Officer’s decisions is to be found in
section 48 of the Act, which provides as follows:
|
Enforceable
removal order
48.
(1) A
removal order is enforceable if it has come into force and is not stayed.
Effect
(2) If a removal order is
enforceable, the foreign national against whom it was made must leave Canada immediately and it must be
enforced as soon as is reasonably practicable.
|
Mesure
de renvoi
48.
(1) La
mesure de renvoi est exécutoire depuis sa prise d’effet dès lors qu’elle ne
fait pas l’objet d’un sursis.
Conséquence
(2) L’étranger visé par la
mesure de renvoi exécutoire doit immédiatement quitter le territoire du
Canada, la mesure devant être appliquée dès que les circonstances le
permettent.
|
ANALYSIS
Standard of Review
[10]
This
Court has established jurisprudence, which stands for the proposition that discretionary
decisions, of Enforcement Officers, such as those based on the scheme set out
in the Act for the enforcement of removal orders, are reviewable on a standard
of patent unreasonableness (see Hailu v. Canada (Solicitor General),
[2005] F.C.J. No. 268 (F.C.) (QL), at paragraph 12 and J.B. v. Canada (Minister of
Citizenship and Immigration), [2004] F.C.J. No. 2094 (F.C.) (QL) at paragraph
25). In other words, this Court will only intervene if the decisions of the
Enforcement Officer were patently unreasonable in light of all the evidence
before her.
Issue Estoppel
[11]
The
applicant argues that Justice Max M. Teitelbaum heard arguments on the stay
motion on July 17, 2006 and granted the stay application because he was
satisfied that the applicant had met the tri-partite test for stay
applications. Moreover, the applicant submits that given that the ground to
establish a serious issue is identical both when seeking a stay and a leave
application for judicial review of the decision, as Justice Teitelbaum had thus
determined, that issue is now subject to the principle of issue estoppel on the
ground that the parties are the same, the issue has been decisively determined
and the decision is final (Raman v. Canada (Minister of Citizenship and
Immigration), [1995] F.C.J. No. 1125 (F.C.T.D.) (QL)).
[12]
The
applicant’s submissions in this regard are flawed. It suffices to refer to
Justice Teitelbaum’s order, which provides as follows:
The
Court orders that the application for stay is allowed to such time that the
application for leave is allowed. In the event that it is denied, the stay will
become void.
[13]
Moreover,
as the respondent correctly points out, the granting of a stay of removal does
not automatically imply that the granting of an application for leave for
judicial review is a foregone conclusion. On the contrary, this Court has
repeatedly gone on to dismiss leave applications in immigration matters even if
a stay of removal was granted.
[14]
It
is enough to cite the three examples provided by the respondent: Guerra-Parrales
v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1345, [2001]
F.C.J. No. 1827 (QL) [reasons for stay order] and Guerra-Parrales v. Canada
(Minister of Citizenship and Immigration), (13 March 2002), Ottawa,
IMM-5489-01 (F.C.) [order dismissing leave]; Martinez Correal et al v. Canada
(Minister of Citizenship and Immigration), (July 29, 2004), Ottawa,
IMM-6609-04 (F.C.) [order granting stay] and Martinez Correal et al v. Canada
(Minister of Citizenship and Immigration), (October 29, 2004),
Ottawa, IMM-6609-04 (F.C.) [order dismissing leave]; and Shanaj and Sageri
v. Canada (Solicitor General), (July 22, 2004), Ottawa, IMM-6402-04 (F.C.)
[order granting stay] and Shanaj and Sageri v. Canada (Solicitor General),
(October 18, 2004), Ottawa, IMM-6402-04 (F.C.) [order dismissing leave].
[15]
The
converse is also true, in that the subsequent dismissal of the leave
applications consisted of decisions taken independently or without commentary
on the correctness of the prior issuance of the stay removal order, which are
not subject to judicial review. That is why it bears reminding that Justice Teitelbaum
saw fit to add the following proviso to his order, “In the event that the application
for leave is denied, the stay will become void.”
[16]
The serious
issue threshold test for the granting of a stay is thus lower and entirely
different from the applicable standard of review for the decision to grant
leave for judicial review. In this fact specific instance, the test for
granting leave is based on the patently unreasonable standard of review, and I
am not at all satisfied that the applicant has established that the Enforcement
Officer’s decisions, in each instance were patently unreasonable.
[17]
The
applicant cites also Wang v. Canada (Minister of Citizenship and Immigration), 2001 FCT 148, [2001] F.C.J.
No 295 (QL), paras. 45, 48 and 50 for the proposition that the removal
officer’s decisions are patently unreasonable because there is compelling
evidence that the applicant is at risk should he be returned to his country.
[18]
After
a careful reading of the applicant’s record and the certified documents, I am
satisfied that it was not patently unreasonable for the Enforcement Officer to conclude
that there was insufficient evidence to establish that the applicant was
directly or by inference at risk as a result of his cousins’ situation. In my
view, it was not patently unreasonable for the Enforcement Officer to find that
there was not more than a mere likelihood that the same fate would be reserved
for the applicant. Consequently, I find that neither the July 6 nor the July
11, 2006 refusal was patently unreasonable.
[19]
The
parties did not submit questions for certification and none arise here.
JUDGMENT
THIS COURT
ORDERS that:
- The application for
judicial review is dismissed. No question is certified.
« Michel Beaudry
»
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