Date: 20070712
Docket: IMM‑2604‑07
Citation: 2007 FC 738
Ottawa,
Ontario, July 12, 2007
PRESENT: The Honourable Mr.
Justice Shore
BETWEEN:
MENDOZA DURAN Beatriz Eugenia
Applicant
and
MINISTER OF PUBLIC
SAFETY AND
EMERGENCY
PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
PREAMBLE
[1]
The Court has established that removals officers have
limited discretion to defer a removal by reason of special or compelling
circumstances.
[37] It is well-established law that the
discretion to defer a removal is very limited. It would be contrary to the
purposes and objects to the Act to expand, by judicial declaration, a removal
officer’s limited discretion so as to mandate a “mini H&C” review prior to
removal (Davis v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1628 paragraph 4
(T.D.) (QL); John v. Canada (Minister of Citizenship and Immigration)
2003 F.C.J. No. 583 (T.D.) (QL)).
(Adviento v.
Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1837,
paragraph 45 (QL), 2003 FC 1430; See also: Simoes v. Canada
(Minister of Citizenship and Immigration), [2000] F.C.J. No. 936,
paragraph 12 (QL) (FC); Williams v. Canada (Minister of Citizenship and
Immigration), 2002 FCT 853,
[2002] F.C.J. No. 1133, paragraph 21 (QL); Prasad v. Canada (Minister of Citizenship and Immigration), 2003 FCT 614,
[2003] F.C.J. No. 805, paragraph 32 (QL); Griffith v.
Canada (Solicitor General), 2006 FC 127, [2006] F.C.J. No. 182,
paragraph 26 (QL).)
[2]
The
applicant did not demonstrate that she had submitted evidence to the removals
officer that could constitute sufficient justification for the officer to
exercise his discretion, which is limited to deferring a removal by reason
of special or compelling circumstances:
[45] The order whose deferral is in
issue is a mandatory order which the Minister is bound by law to execute. The
exercise of deferral requires justification for failing to obey a positive
obligation imposed by statute. That justification must be found in the
statute or in some other legal obligation imposed on the Minister which is of
sufficient importance to relieve the Minister from compliance with
section 48 of the Act [Immigration
Act, R.S.C. 1985, c. 1‑2].
(Emphasis added.)
(Wang v.
Canada (Minister of Citizenship and Immigration), 2001 FCT 148,
[2001] F.C.J. No. 295, paragraph 45 (QL))
INTRODUCTION
[3]
The applicant, a Mexican citizen, has brought a motion to
stay the removal order against her. The motion is attached to an application
for leave and judicial review (ALJR) of the removals officer’s refusal to defer
her removal.
[4]
A motion for a stay of the removal order was also filed
in docket IMM‑2603‑07, attached to an ALJR of the negative decision
dated on May 17, 2007, on the applicant’s application for a pre‑removal
risk assessment.
FACTS
[5]
The applicant is a Mexican citizen who claimed refugee
status in Canada on June 22, 2004 (page 2, “Risks
identified by the Applicant”, Notes to file − Pre‑removal Risk
Assessment, (PRRA Reasons), Exhibit D to the Affidavit of
Francine Lauzé).
[6]
The applicant alleges that she is afraid in her country
because of her homosexuality. (See the Reasons for Decision issued
January 6, 2005, by the Refugee Protection Division (RPD),
Exhibit E to the Affidavit of Francine Lauzé.)
[7]
The RPD of the Immigration and Refugee Board (IRB) heard
the refugee claim on January 6, 2005, and refused it because the
applicant lacked credibility. The applicant did not file an ALJR of that
decision.
[8]
The applicant applied for a pre‑removal risk
assessment on February 25, 2007 (application for a Pre‑Removal
Risk Assessment (PRRA Application), Exhibit F to the Affidavit of Francine Lauzé).
A negative decision was issued on May 17, 2007 (PRRA Reasons,
Exhibit D to the Affidavit of Francine Lauzé).
[9]
The applicant is currently in a common-law relationship
with a man, according to the affidavits of the applicant and her spouse, and
applied for permanent residence as a spouse in Canada on February 9, 2007.
[10]
The negative decision on the PRRA application was sent
to the applicant on June 9, 2007. An ALJR of that decision was filed on June 28, 2007,
in docket IMM‑2603‑07. (See “Notice
of Interview for June 9, 2007”, Exhibit A to the Affidavit of
Francine Lauzé and after “Officer’s Notes dated June 9, 2007”, Exhibit B to the Affidavit of
Francine Lauzé.)
[11]
At the meeting on June 9, 2007, the applicant received
a letter telling her that she had to go to the Canada Border Services
Agency (CBSA) no later than July 4, 2007, in possession
of a plane ticket with a departure date of July 13, 2007, or earlier.
[12]
The
applicant failed to appear on July 4, 2007, and the CBSA
issued an arrest warrant against the applicant. Because the applicant had not
shown up, no departure date could be set. (See the note to file signed by Éric Gagnon, dated 05‑07‑2007,
Exhibit L to the Affidavit of Francine Lauzé.)
[13]
On July 4, 2007, the applicant served and filed
motions for stays of the removal order in this docket and in docket IMM‑2603‑07.
[14]
On July 6, 2007, the applicant finally went to
the CBSA offices and since she had in her possession a plane
ticket for July 13, 2007, the departure date was scheduled for
July 13, 2007. (See the “Officer’s Notes”, dated
July 6, 2007, Exhibit G to the Affidavit of Francine Lauzé and
the confirmation of the departure date of July 13, 2007, dated July 6, 2007,
Exhibit H to the Affidavit of Francine Lauzé.)
ANALYSIS
[15]
In order to assess the merits of the stay motion, this
Court must determine whether the applicant meets the tests
delineated by the Federal Court of Appeal in Toth v. Canada
(Minister of Employment and Immigration), 86 N.R. 302
(C.A.).
[16]
In that case, the Federal Court of Appeal adopted three tests
that it imported from the case law on injunctions, specifically the Supreme
Court of Canada decision in Manitoba (Attorney General) v.
Metropolitan Stores Ltd., [1987] 1 S.C.R. 110.
The three tests are
(1) serious
issue;
(2) irreparable
harm; and
(3) assessment
of the balance of convenience.
[17]
All three tests must be met for this Court to grant the
stay. If one of them is not satisfied, the Court cannot grant the stay.
[18]
In this case, the applicant has not demonstrated that
there is a serious issue to be tried on the ALJR of the
officer’s decision on the application based on humanitarian and compassionate
grounds; she has not established irreparable harm and, last, the inconvenience
to the applicant is not superior to the public interest
in having the removal order enforced as soon as is practicable in accordance
with paragraph 48(2) of the IRPA.
SERIOUS
ISSUE
[19]
The applicant did not demonstrate that there is a
serious issue to be tried by this Court.
[20]
The applicant must show that she has a reasonable chance
of succeeding on her main application, i.e., the ALJR of the
officer’s decision.
LIMITED
DISCRETION OF REMOVALS OFFICER
[21]
The Court has established that removals officers have
limited discretion to defer a removal by reason of special or compelling
circumstances.
[37] It is well-established law that the
discretion to defer a removal is very limited. It would be contrary to the
purposes and objects to the Act to expand, by judicial declaration, a removal
officer’s limited discretion so as to mandate a “mini H&C” review prior to
removal (Davis v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1628 paragraph 4
(T.D.) (QL); John v. Canada (Minister of Citizenship and Immigration)
2003 F.C.J. No. 583 (T.D.) (QL).
(Adviento, above; See
also: Simoes, above; Williams, above; Prasad, above; Griffith,
above.)
[22]
The
applicant did not demonstrate that she had submitted evidence to the removals
officer that could constitute sufficient justification for the officer to
exercise his discretion, which is limited to deferring a removal by reason
of special or compelling circumstances:
[45] The order whose deferral is in
issue is a mandatory order which the Minister is bound by law to execute. The
exercise of deferral requires justification for failing to obey a positive
obligation imposed by statute. That justification must be found in the
statute or in some other legal obligation imposed on the Minister which is of
sufficient importance to relieve the Minister from compliance with
section 48 of the Act [Immigration
Act, R.S.C. 1985, c. 1‑2].
(Emphasis added.)
(Wang, above)
[23]
The applicant simply states in her affidavit that the
officer [translation] “refused to
stay the removal despite the fact that I told him about the ongoing sponsorship
proceedings” (paragraph 16, Affidavit of the Applicant,
page 12 of the Motion Record).
[24]
It is settled law that a pending sponsorship application
is not per se an obstacle to removal.
[52] Turning to the issue in the underlying
judicial review, the Removal Officer’s refusal to defer the removal pending the
disposition of the H & C application, I find no serious issue with regard
to the Removal Officer’s conduct. As set out above, a pending H & C
application on grounds of family separation is not itself grounds for delaying
a removal. To treat it as such would be to create a statutory stay which
Parliament declined to enact. Green v. Canada
(Minister of Employment and Immigration), [1984] 1 F.C. 441 (C.A.),
(1983) 49 N.R. 225, cited in Cohen v. Canada (Minister of Citizenship and
Immigration), [1995] F.C.J. No. 589, (1995), 31 Imm. L.R. (2d) 134, per
Noël J. (as he then was).
(Wang, above; See
also: Banwait v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 522,
paragraphs 17 to 19 (T.D.) (QL).)
[25]
The applicant clearly did not submit any evidence that
could constitute justification for the removals officer to defer the removal.
[26]
Considering all of the foregoing, the applicant failed
to raise a serious issue in support of her motion. The motion for a stay of
removal could be dismissed on this ground alone.
THE
APPLICANT NOT ENTITLED TO ADMINISTRATIVE DEFERRAL
[27]
The applicant was invited by letter dated January 22, 2007,
to meet with an IRPA enforcement officer on February 10, 2007, to
bring her file up‑to‑date for a possible removal from Canada
(interview letter for pre‑removal interview, dated January 22, 2007,
Exhibit I to the Affidavit of Francine Lauzé).
[28]
It was only after receiving the letter that the
applicant submitted an application for permanent residence as a spouse in Canada.
In fact, the application was filed on February 9, 2007.
[29]
The applicant could only have benefited from the policy
if her sponsorship application had been submitted before she was invited to an
interview:
When is a client
removal ready?
For the purposes of this public policy, by
the time an applicant attends a pre‑removal interview, he/she is
generally removal ready. This means that a client who has been called to
a pre‑removal interview by any means (letter, call etc.) and who has not
already applied as a spousal H&C applicant or a Spouse or Common-law
Partner in Canada class applicant, cannot, from the point they are called
to the interview forward, benefit from an administrative deferral of removal as
outlined in this public policy except in the limited circumstances
outlined below (transitional cases). (Emphasis added.)
(page 60, “F.
ADMINISTRATIVE DEFERRAL OF REMOVAL”, Appendix H—Public Policy Under 25(1)
of IRPA to Facilitate Processing in accordance with the Regulations of the
Spouse or Common-Law Partner in Canada Class, Manual IP8:
Spouse or Common-Law Partner in Canada Class, Exhibit J
to the Affidavit of Francine Lauzé)
[30]
The applicant was, therefore, not eligible for the
policy since her application was submitted after she had been invited to the
pre‑removal interview. Moreover, the administrative deferral lasts for 60 days
and, if it had been applicable, would have expired by now.
IRREPARABLE
HARM
[31]
The
Court defined irreparable harm in Kerrutt v. Canada (Minister of Employment
and Immigration), (1992) 53 F.T.R. 93, [1992] F.C.J. No. 237,
paragraph 15 (QL) (T.D.) as returning
a person to a country where his safety or his life is in jeopardy.
[32]
In Calderon v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 393,
paragraph 22 (QL), Madam Justice Sandra J. Simpson stated
the following about the definition of irreparable harm in Kerrutt, above:
[22] In Kerrutt v. M.E.I. (1992), 53 F.T.R. 93
(F.C.T.D.) Mr. Justice MacKay concluded that, for the purposes of a stay application,
irreparable harm implies the serious likelihood of jeopardy to an applicant’s
life or safety. This is a very strict test and I accept its premise
that irreparable harm must be very grave and more than the
unfortunate hardship associated with the breakup or relocation of a family.
(Emphasis added.)
[33]
The applicant repeats in part what she already stated in
the refugee claim and the PRRA application about her alleged
homosexuality while she was living in Mexico.
[34]
The RPD denied the applicant’s refugee claim on
January 6, 2005, and concluded that it did not believe the applicant’s
allegations. The applicant did not file an ALJR of that decision (RPD
Reasons, Exhibit E to the Affidavit of Francine Lauzé).
[35]
On the other hand, the risks identified by the applicant
on her PRRA application are based on allegations about her homosexuality when
she was living in Mexico. She does not want to return to Mexico and relive what
she endured.
[36]
The PRRA officer found that the applicant would not be
at risk should she return to Mexico (PRRA Reasons, Exhibit D to the Affidavit of
Francine Lauzé).
[37]
The applicant explained that she now realizes that she
was not really homosexual but that she acted that way to show that she was eccentric.
Besides, she is now openly, and with her family’s knowledge, in a relationship
with a man.
[38]
On a motion for a stay of a removal order, an applicant cannot
allege the same risks that were dismissed at the RPD and PRRA stages.
[2] . . . Moreover, his allegations on
that point are substantially the same as the ones raised when his claim was
before the Immigration and Refugee Board. His allegations— then assessed and
dismissed because they were not credible—cannot be the basis of an allegation
of irreparable harm (see, for example, Akyol v. The Minister of Citizenship
and Immigration, [2003] F.C.J. No. 1182,
2003 FC 931).
(Dimouamoua v.
Canada (Minister of Citizenship and Immigration), 2005 FC 940,
[2005] F.C.J. No. 1172 (QL))
[39]
In support of her stay motion, the applicant also states
that her spouse is a Muslim, that his parents have disowned him and that she
fears for her [translation]
“future, reputation and safety” if returned to Mexico (paragraphs 28
and 30, Affidavit of the Applicant, page 13 of the Motion
Record).
[40]
These allegations of the applicant are vague and provide
no details about the irreparable harm she would suffer if returned to Mexico. It
is not clear whether the risks would stem from the fact that her spouse is a
Muslim or whether they are connected to her homosexuality allegations.
[41]
For these reasons, the alleged harm is purely
speculative:
[7] Second, 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: Atakora, supra, at para. 12; Syntex Inc.
v. Novopharm Inc. (1991), 36 C.P.R. (3d) 129 at 135 (F.C.A.); and Molnar
v. Canada (Minister of Citizenship and Immigration),
[2001] F.C.J. No. 559, 2001 FCT 325 at para. 15).
(Akyol v.
Canada (Minister of Citizenship and Immigration), 2003 FC 931,
[2003] F.C.J. No. 1182 (QL))
APPLICANT’S SPOUSE
[42]
The applicant’s spouse states in his affidavit that he
could not go to live with the applicant in
Mexico because his family has disowned them.
[43]
He also relies on the financial commitments that he and
the applicant have entered into together and states that it would be impossible
to pay these debts on his own.
[44]
The problems raised by the applicant’s spouse are the normal
consequences of removal. In addition, no details or evidence about these
commitments were provided.
[45]
Moreover,
no details about the relationship were submitted to the Court.
[46]
It is settled law that family separation per se
is not irreparable harm because it is within the normal consequences of
removal.
[3] Second, family separation per se
is not irreparable harm because it is within the normal consequences of
deportation (see, i.e., Asomadu-Acheampong v. M.E.I.
(March 22, 1993), IMM‑1008‑93; Boda v. M.E.I.
(1992), 56 F.T.R. 106; Mobley v. M.C.I. (June 12, 1995),
IMM‑107‑95; Jones v. M.C.I. (June 12, 1995), IMM‑454‑95;
Ram v. Canada (M.C.I.), [1996] F.C.J. No. 883 (QL); Mario Ernesto
Huezo et al. v. M.C.I. (April 21, 1997), IMM‑1491‑97;
William Geovany Castro v. M.C.I. (October 14, 1997), IMM‑2729‑97;
Melo v. Canada (M.C.I.) (2000), 188 F.T.R. 39, and Kaur v.
Canada (M.C.I.), [2002] F.C.J. No. 766 (QL)). There is
nothing about the applicant’s case which takes it beyond the usual result of
deportation.
(Celis v.
Canada (Minister of Citizenship and Immigration), 2002 FCT 1231,
[2002] F.C.J. No. 1679, paragraph 3 (QL); See also:
Parsons v. Canada (Minister of Citizenship and
Immigration), 2003 FC 913, [2003] F.C.J. No. 1161,
paragraph 10 (QL); Damiye v. Canada (Minister of Citizenship and
Immigration), [2001] F.C.J. No. 70, paragraph 24
(QL).)
[47]
Separation from a spouse is not the type of harm referred
to in the tripartite test to obtain a stay. As stated by Mr. Justice
Denis Pelletier in Melo v. Canada (Minister of Citizenship and Immigration),
[2000] F.C.J. No. 403 (T.D.) (QL):
[21] These are all unpleasant and
distasteful consequences of deportation. But 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. There is nothing in Mr. Melo’s
circumstances which takes it out of the usual consequences of deportation.
[48]
Ultimately, the applicant and her spouse were aware of
her precarious status when they took on the financial commitments, which were,
moreover, not in evidence before the Court, and they made their decisions with
full knowledge of the situation. In the words of Mr. Justice Paul Rouleau,
they did so at their peril:
[16] I see no transgressions in the
conduct of the Minister; no expectations granted the applicant; if he chose to
marry while still not having his situation favourably determined by Canadian
authorities, it is at his peril, not that of the Minister who has a duty to
uphold the laws of Canada.
(Banwait v.
Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 522
(T.D.) (QL))
[49]
Consequently, absent a serious issue to be tried by this
Court, the applicant has not demonstrated irreparable harm.
BALANCE OF CONVENIENCE
[50]
In addition to demonstrating that the underlying ALJR raises
a serious issue to be tried and that he or she will suffer irreparable harm if the
removal is not stayed, the person requesting a stay must establish that, having
regard to all the circumstances, the balance of convenience favours granting
the stay (Manitoba (Attorney General) v. Metropolitan Ltd., above; R.J.R. - Macdonald
Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311; Toth,
above).
[51]
In determining the balance of convenience, the Court
must decide which of the two parties will suffer the greater harm from the
grant or refusal of the stay (Manitoba (Attorney General) v. Metropolitan
Ltd., above).
[52]
Absent
serious issue and irreparable harm, the balance of convenience favours the
Minister, who has an interest in seeing to the effective and timely
implementation of the removal order (Mobley
v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 65, paragraph 2 (QL)).
[53]
Subsection 48(2) of the Act provides that a removal
order must be enforced as soon as is reasonably practicable.
|
48. (1) Enforceable Removal Order -
A removal order is enforceable if it has come into force and is not stayed.
|
48. (1) Mesure de renvoi - La
mesure de renvoi est exécutoire depuis sa prise d’effet dès lors qu’elle ne
fait pas l’objet d’un sursis.
|
|
(2) Effect - 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.
|
(2) Conséquence - 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.
|
[54]
In Membreno-Garcia v. Canada (Minister of Employment
and Immigration), [1992] 3 FC. 306
(T.D.), [1992] F.C.J. No. 535, paragraph 18 (QL), Madam Justice Barbara Reed elaborated
on the issue of balance of convenience on stay motions and the public
interest that must be taken into consideration:
[18] What is in issue, however, when considering
balance of convenience, is the extent to which the granting of stays might
become a practice which thwarts the efficient operation of the immigration
legislation. It is well known that the present procedures were put in place
because a practice had grown up in which many many cases, totally devoid of
merit, were initiated in the court, indeed were clogging the court, for the
sole purpose of buying the appellants further time in Canada. There is a public
interest in having a system which operates in an efficient, expeditious and
fair manner and which, to the greatest extent possible, does not lend itself to
abusive practices. This is the public interest which in my view must be weighed
against the potential harm to the applicant if a stay is not granted.
[55]
The balance of convenience favours the Minister.
CONCLUSION
[56]
For all these reasons, the motion for a stay of the
removal order is dismissed.
JUDGMENT
THE
COURT ORDERS that the motion for a stay of the removal
order is dismissed.
“Michel M.J. Shore”
Certified true
translation
Mary Jo Egan, LLB
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