Date:
20070723
Docket:
IMM-2717-07
Citation:
2007 FC 750
[ENGLISH
TRANSLATION]
Ottawa, Ontario, July 23, 2007
PRESENT:
The Honourable Mr. Justice Shore
BETWEEN:
MARIA BONNIE
ARIAS-GARCIA and
ROBERTO SALGADO-ARIAS and
RODOLFO VALDES-ARIAS (ALIAS RODOLFO
ARIAS-GARCIA)
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION and THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND
JUDGMENT
INTRODUCTION
[1]
In
any application to stay a removal, like in every immigration case, the Court
must maintain an appropriate balance between the protection of individuals and
the integrity of the immigration system. In this case, the vulnerability of the
applicants, in particular of the child, Rodolfo, who was abducted on two
occasions, requires that a stay be granted. Moreover, the integrity of the
judicial system and stare decisis, given that the content of the two
judgments rendered by Mr. Justice Sean Harrington, show that there would be
irreparable harm caused by the removal and that the balance of convenience
favours the applicants.
[2]
Moreover,
the officer did not consider the distinction between the application based on
humanitarian and compassionate (HC) considerations and the Pre-Removal Risk
Assessment (PRRA) application:
[7] While PRRA and H&C
applications take risk into account, the manner in which they are assessed is
quite different. In the context of a PRRA, “risk” as per section 97 of IRPA
involves assessing whether the applicant would be personally subjected to a
danger of torture or to a risk to life or to cruel and unusual treatment or
punishment.
[8] In an H&C application,
however, risk should be addressed as but one of the factors relevant to
determining whether the applicant would face unusual, and underserved or
disproportionate hardship. Thus the focus is on hardship, which has a risk
component, not on risk as such.
[9] In general terms, it is more
difficult for a PRRA applicant to establish risk than it is for an H&C
applicant to establish hardship (see: Melchor v. Canada (Minister of
Citizenship and Immigration), [2004] F.C.J. No. 1600, 2004 FC 1327; Dharamraj
v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 853,
2006 FC 674; and Pinter v. Canada (Minister of Citizenship and Immigration),
[2005] F.C.J. No. 366, 2005 FC 296).
[10] In recent years, the PRRA
normally precedes the H&C or is decided at the same time. Thus the present
case is a little unusual.
[11] In Pinter, above,
Chief Justice Lutfy wrote:
[5] In my view, it was an error in law
for the immigration officer to have concluded that she was not required to deal
with risk factors in her assessment of the humanitarian and compassionate
application. She should not have closed her mind to risk factors even though
a valid negative pre-removal risk assessment may have been made. There may well
be risk considerations which are relevant to an application for permanent
residence from within Canada which fall well below the higher threshold of risk
to life or cruel and unusual punishment.
[Emphasis added]
[12] In the current case, the
officer considered the risk factors set out in the negative refugee claim
decision, and updated them. Although he considered Mr. Singh Sahota’s
connections with Canada, as far as India is concerned, although he used the
humanitarian and compassionate form, in reality all he did was assess risk, not
hardship. For instance he said, “in assessing the risk invoked by the applicant
I note that they have, in substance, been previously considered by the IRB.” It
may well be that a risk may not be so sufficient as to support a refugee claim
under sections 96 or 97 of IRPA, but still be of sufficient severity to
constitute a hardship.
[13] The officer applied the wrong
test, and therefore Mr. Singh Sahota was not given a fair hearing. Although
there are rare occasions when it can be said that the result would have been
the same (see: Mobil Oil Canada Ltd. v. Canada Newfoundland Offshore
Petroleum Board, [1994] 1 S.C.R. 202), the general rule, and the rule which
applies here, is that it is not up to the Court to speculate as to what the
result might have been had the proper test been followed (see: Cardinal v.
Kent Institution, [1985] 2 S.C.R. 643.
(Sahota v. Canada (Citizenship and Immigration),
2007 FC 651, [2007] F.C.J. No. 882 (QL).)
INTRODUCTION
[3]
The
respondents submit that the applicants should have challenged the removal set
for June 27, 2007, as they have been aware of it since the beginning of May.
[4]
According
to her counsel, David Chalk, the principal applicant did not apply to stay the removal
because the applicants were informed that their application for a visa
exemption based on humanitarian and compassionate considerations would probably
be processed before the removal date.
[5]
Mr.
Chalk specified the following on this point:
[translation]
6. Without making a
commitment, Ms. Petticlerc said that the HC application would normally be
reviewed by a Citizenship and Immigration Canada officer, either Isabelle-Anne
Moreault, or Huguette Samson.
. . .
8. I was confident that
there would be a positive decision in Ms. Arias-Garcias’ case because of the
family’s exceptional integration at every level and the fact that it was
clearly in the best interests of Ms. Arias-Garcia’s youngest son and the family
that the permanent residence file be processed in Canada. Moreover, I knew that
the immigration office in Québec had a much lighter caseload then the office in
Montréal.
9. From Tuesday, June 19,
2007, until Thursday, June 21, I made many attempts to contact Ms. Moreault or
Ms. Samson by telephone to find out whether a decision would be made before the
date scheduled for the family’s departure. I left messages on their voicemail, without
receiving a response. When I had still not received a response on Thursday,
June 21, I tried other numbers for immigration officers in Québec and I left
other urgent messages, which have still not been answered.
10. I spoke with Ms. Arias-Garcia at the end
of the day. She told me that a priest who was interested in her case had
told her that a decision would be made the next day on her HC application.
[6]
The
principal applicant was represented by Diane Bélanger, a lawyer specialized in
immigration law for 20 or so years, for all administrative proceedings with
Minister of Citizenship and Immigration representatives.
[7]
Ms.
Bélanger had been ill since February 2006. Following examinations, she
underwent surgery performed by Dr. Liane Feldman at the Montreal General
Hospital on April 18, 2006, for cancer of an adrenal gland.
[8]
Ms.
Bélanger was unable to work for almost the entire year because of this cancer. She
died on December 2, 2006, as a result of the cancer.
[9]
In
February 2007, Jean El Masri referred the principal applicant to another
immigration law specialist, Mr. Chalk, who finalized the permanent residence
application based on humanitarian and compassionate considerations. (Mr. El
Masri never represented the principal applicant except to plead before the
courts. Since he does not specialize in immigration law, he could not represent
the applicants before the immigration authorities.)
[10]
Since
the permanent residence application should have been processed at the
respondents’ office in Québec before Friday, June 22, 2007, namely before the
removal order came into force, the removal was not contested.
[11]
In
fact, there is one issue: an application to stay can only suspend the removal
until a decision is made on the application for a visa exemption based on
humanitarian and compassionate considerations. This decision was rendered
before the date set for removal. In other words, if a stay had been requested
and granted, it could not have gone beyond June 26, 2007, namely the date that
the applicants and their counsel would have been aware of the decision.
[12]
The
application for a visa exemption based on humanitarian considerations is not in
itself grounds to delay the removal. The situation is different here: the
principal applicant has not only filed such an application, but thought that a
decision would be rendered before the departure date.
[13]
The
respondents argue that the principal applicant should have contested the
removal between June 26, 2007 (when, according to Mr. Chalk, he received
the decision) and June 27, 2007, even when the HC decision was made on June 20,
2007, and was not communicated for six days.
[14]
The
four authorities cited by the respondents (Inderjit Singh v. Canada (Minister
of Employment and Immigration), [1983] F.C.J. No. 1087 (F.C.A.) (QL), Manohararaj
v. Canada (Minister of Citizenship and Immigration), 2006 FC 376, [2006] F.C.J.
No. 495 (QL), Mohar v. Canada (Minister of Citizenship and Immigration),
2005 FC 952, [2005] F.C.J. No. 1179 (QL) et Chavez v. Canada (Minister
of Public Safety and Emergency Preparedness), 2006 FC 830, [2006] F.C.J. No.
1059 (QL), are problematic because all of them involve stays for removal that
were submitted in different ways:
•
Several
years after the removal date (between 2 and 5 years), and
•
Only
after the claimant’s arrest.
[15]
That
is not the case before this Court.
[16]
The
Court notes Lima v. Canada (Minister of Citizenship and
Immigration), 2007 FC 383, [2007] F.C.J. No. 530 (QL):
[16] It is trite law that in order for the
Applicant to succeed on a motion for an order staying his or her removal
pending final determination of an Application for leave and for judicial review
such as that here before the Court, the burden rests on the Applicant to
establish three things: first, that there is a serious issue to be tried on his
or her application for leave and for judicial review; second, that unless the
stay is granted the Applicant or, as in this case, a child directly affected by
the Applicant’s removal, will suffer irreparable harm; and third, that the
balance of convenience favours the Applicant rather than the Respondent[2]. Similarly,
it is trite law that a stay of removal is an equitable remedy and, as such, it
is open to the Court to deny the remedy in circumstances where an applicant
does not come to the Court with “clean hands”.
[17] Certainly, on the facts of this matter, the Applicant
does not come to the Court with “clean hands”. The Applicant has been evading a
deportation order and a warrant for her arrest since the end of July, 1997. That
being said, I am loathe to inflict the sins of the mother on the daughter in
the circumstances here before the Court and I will therefore turn to a
consideration of the tripartite test for a stay of removal based on a somewhat
analogous circumstance in which a stay of removal was granted notwithstanding a
lack of “clean hands” on the part of an applicant (See : Calabrese v. Canada
(Minister of Citizenship and Immigration), [1966] F.C.J. No. 723 (QL), May
23, 1996).
. . .
[19] Against the very low threshold for a
serious issue to be tried, I am satisfied that the issue of whether the
Respondent, on the relatively unique facts of this case, breached the duty of
fairness owed to the Applicant by failing to provide reasonable notice of a
relatively imminent decision where the decision, as here, was to be taken in
less than 4 months from the date of application, a period of approximately
l/5th of the Respondent’s own best estimates of the time from application to
decision, is a serious one. (Emphasis added.)
FACTS
[17]
The
Court reiterates the facts involving the principal applicant that were set out
in the decision M.B.G.A. v. R.V.M., [2004] J.Q. No. 6779 (QL), of the Court
of Appeal of Quebec, on June 8, 2004:
[translation]
[8] The child’s father is
a citizen of Mexico; he is a notary public and 65 years old. The mother is also
a citizen of Mexico but made an immigration application in Canada. She is a
dentist and is 37 years old. They were married on xxxx 1997 and the child born
of the union, R . . . V . . . A . . . , was born on . . . 1998. The appellant, the
child’s mother, also had an 8-year-old older child, Ro . . . , born of a
previous union.
[9] The couple was
separated on July 20, 1999. According to the appellant’s testimony, it was
following an incident of physical violence by her husband, while he was holding
the child in his arms, that she decided to leave the matrimonial home with her
children and to live first with her mother and then take a house to settle
there with her children. In the months that followed this separation, the
father had access to the child R . . . , who would sleep on occasion at his
father’s home during the visits. There were discussions between the lawyers
about the possibility of filing divorce proceedings. According to the appellant’s
testimony, the father allegedly asked for the child as follows:
. . .
Yes, that’s it.
A- He
wanted the child to be given to him, that he be given the child, he asked that
I give him the child because I already have another son and that I, I could keep
just one child. I told him no, that the two (2) of them are my children _ the
two (2) children are mine. We had to agree to be able to share the time with
the two (2) children.
. . .
A-
He never . . . he never loved Ro . . .
[10] At one point, in April
2000, when the child was at his mother’s home with the child’s nanny, the father
showed up and with or without the nanny’s consent (the evidence is
contradictory on this point and there is no reason to decide the issue), the
father brought the child to his home. The mother was informed by the nanny over
the phone and for several days, she did not know where the child was; the
father was not at his office and did not communicate with the mother despite
many telephone calls from her. It was a vacation and when he returned to the
city, the father contacted the mother and then filed court proceedings
requesting custody of the child. As such, the child stayed with the father for
two and a half months, without the mother’s consent. On May 10, 2000, the judge
decided to award interim custody to the mother and, again according to the
mother’s testimony, the father did not comply with this interim order and did
not return the child. This is how the appellant describes the circumstances:
THE COURT:
Q- And what happened?
A- He
never gave him back. After two (2) months, almost two (2) months, I was still
waiting for the child.
Q- Two (2) months.
A- Waiting
for two (2) months. And through some parents of Mr. V . . . , I was told that
the child was sick. It was then that I decided to go, to go to Mr. V’s house .
. . I waited for him there outside the house. When he came out of the house
through the garage, the child came out behind him, the child was crying behind
him.
I took the child, I hugged him, and
I asked him to let me (inaudible) with the child, that I knew that the child
was sick. He told me no, that he would take the child to his mother’s house to
give him medicine. He always left the child at his mother’s house, at his sister’s
house, because he was always at the office.
I took the child and tried to get
in my car, but then, violently, he took the child and the car keys, he told me
not to leave and not to take the child with me and that he had a meeting right
then with the notaries and had to leave then. I asked him to let me stay in his
house with the child, then he took my keys and left. I stayed there at his house;
I made breakfast for the child. The child then started vomiting, he had a
little diarrhea, he had . . . he was bleeding, he had a fever, I, I was afraid,
I was very afraid. That was when I took the child . . .
. . .
Q- You
stated that you were afraid and that’s what you did?
A- I
was very afraid, I saw the child so sick, I could not be with him.
Q- What
did you do, madam?
A-
I took the child, we left Mr. V’s house . . . , I was
running everywhere (inaudible), there was a friend’s house near there . . .
THE COURT:
Q- What
is the friend’s name?
A- O .
. . I asked my friend to help me get out of the area, because there was
security . . .
Q- What
do you mean, security?
. . .
THE COURT:
It is a gated community; there
was a fence around the property.
THE INTERPRETER:
Yes, that’s it.
A- And
since I did not have a car, because he had taken my keys, then, there was the
child’s nanny (inaudible) also and from there we left for my parents’ house.
[11] After the child was
better, the father again asked the mother for access rights, which were granted
to him for one day at a time. Shortly afterward, on father’s day, the father
refused to bring the child back at the end of the day visit. The parties talked
all night and the mother states that the next morning around 10:00 a.m., the
father gave her legal papers to sign regarding the divorce, custody of the
child, authorization for the father to leave the country with the child, etc., all
in exchange for returning the child to his mother. Not being a jurist, she did
not understand everything and refused to sign the document. The father then
allegedly refused to return the child to his mother.
[12] The mother then turned
to the court and while she was waiting for the judge’s decision, she ran into
the child by chance on the street in the company of the father’s sister. An
incident followed with the child’s aunt and the police were called. Presented
with the judgment dated May 10, 2000, the police returned the child to his
mother. The mother testified that she was afraid afterwards that the child
would be abducted a third time; she therefore changed residences often, living
in turn with her brother, her parents, an aunt, etc. Since she worked in Mexico
City, she went there regularly and often lived at her brother’s former
apartment in Mexico. She testified that the father threatened that he would
take the child and that she would never see him again and that her telephone conversations
were intercepted.
[13] On December 6, 2001, a
judgment was rendered in Mexico granting interim custody of the child R . . .
to the mother with access rights for the father, the respondent.
[14] It was in this fearful
state of mind that the mother had a birth certificate issued for R . . . that
indicated “that she was a single parent” and that the father was unknown. On
December 20, 2001, a passport was issued to the child R . . . in the name of “R
. . . A . . . G . . . “, namely the name of the mother alone.
[15] On June 24, 2002, the
appellant arrived in Quebec with her two children, with a tourist visa in hand.
She settled in city A and sent the children to daycare and to school. She began
administrative proceedings to obtain a selection certificate to live in Quebec.
To do so, she had to return to Mexico for an interview with Canadian
immigration authorities. She then returned to Mexico in February 2003 for that
purpose. On April 28, 2003, the Immigration Service in Mexico issued Quebec
selection certificates to the appellant, to Ro . . . and to R . ... On May 28,
2003, the appellant came back to Quebec with her children.
[16] On April 28, 2003, a judgment
was rendered awarding interim custody of the child to the father. But on
October 22, 2003, a new judgment was rendered in Mexico, setting aside the
judgment dated April 28, 2003, and returning the parties to the status quo as of
December 6, 2001, i.e., awarding custody of the child back to the mother.
[17] On November 9, 2003, the
mother went on a trip to the United States for a few hours with the children. When
she returned to Canada, she was stopped at the border by the Immigration
Division and put into detention with the two children on the grounds that she
had abducted the children in violation of a custody order and based on two arrest
warrants issued against her in Mexico [See Note 2, infra] dated June 25,
2002, and September 25, 2002, i.e. before the judgment dated October 22, 2003,
that awarded the interim custody back to the mother.
[18]
In
support of her HC application, Ms. Arias-Garcia raises the father’s violence,
the abductions of Rodolfo, and the complaints that were issued before the
courts.
[19]
In
the case of the principal applicant, the Court of Appeal of Quebec also dismissed
the motion for the return of the principal applicant’s son, Rodolfo
Valdes-Arias, born on July 19, 1998, filed by the father under the Act
respecting the civil aspects of international and interprovincial child
abduction, R.S.Q. c. A-23.01, because of his integration in his new
environment:
[translation]
[36] These interests of the child
are sometimes reviewed in light of Article 3 of the United Nations Convention
on the Rights of the Child:
In all actions concerning children,
whether undertaken by public or private social welfare institutions, courts of
law, administrative authorities or legislative bodies, the best interests of
the child shall be a primary consideration.
. . .
[39] Based on a review of these
principles and a review of the evidence, I infer first that the child is
integrated in his new environment. The two children have gone together to
daycare or to school since October 7, 2002. They are well integrated. R . . . quickly
learned French (“Québécois” French, say the witnesses) in contact with his
classmates, made friends outside of school and in school and his relationship
with his sibling seems strong. R . . . has also begun to read and write in
French. Both children go together every day to the same school. The environment
offers them continuity and stability. The mother is also in a stable romantic
relationship (six months at the time of the hearing at trial) with a
56-year-old engineer and administrator who is in a stable situation and who
communicates well with the children. Although the new companion speaks Spanish,
the children insist on speaking to him in French.
[40] Contrary to what the judge
stated at trial, the appellant did not come to Quebec just as a tourist, but to
eventually establish herself there if she could obtain the necessary authorisation.
[41] I find that the evidence
indicates that the child has integrated into his new environment and I propose,
for that reason, that the appeal be allowed, that the trial judgment be quashed
and that the motion for the immediate return of the child R . . . to Mexico be
dismissed, each party to pay its own costs.
(M.B.G.A. v. R.V.M., supra.)
[20]
Since the Court of Appeal of Quebec’s decision,
there has been a final judgment of divorce by a Mexican court, awarding final
custody of Rodolfo to the principal applicant.
[21]
The applicants have been in Canada since June
2002. They are even more integrated than they were at the time of the Court of
Appeal’s judgment in June 2004, and the effects of their departure would be a
significant detriment to the family’s well-being, according to the test in Toth
v. Canada (Minister of Employment and Immigration), 86 N.R. 302 (C.A.).
[22]
Ms. Arias-Garcia, in her HC application, specified
the following facts:
[translation]
I have reason to
believe that Mr. Valdes will come after Rodolfo if we have to return to our
country. He has already abducted our son on two occasions and he has threatened
more than once to do it again. Considering everything that has happened since,
I fear that this will have aggravated his threats and that now more than ever
he could act on them.
…
In accordance with the
concept of parental authority, I would have to obtain Mr. Valdes’s consent
to leave Mexico with Rodolfo. Under the circumstances, it is very likely that
he will refuse any request to travel. It will be impossible for me to get him
to cooperate since he has refused to cooperate with me since the beginning of
the proceedings. In fact, since 2000, my ex-husband has breached his obligation
to pay alimentary support for me and for his own son. I ask you to read the
opinion of my Mexican lawyer, José Arturo Vera Aboytes, attached. He has
represented me since the beginning of the proceedings and is very familiar with
the legal aspects of the case. In his opinion, it will be “impossible to obtain
[Mr. Valdes’] authorization for [Rodolfo] to leave Mexico” based on his very
obvious failure to cooperate since the proceedings began. He adds that even
though Mr. Valdes wants to get custody of our son, since our separation he has
always refused to ensure his well-being in failing to pay his alimentary
support.
…
In the last few years,
I have had the opportunity to offer my children a nice stable life in their
best interests. I have seen them grow in an environment that is, first, very
removed from the reality that they were living in before, but also one that
they adapted to and integrated into very quickly. The children were very young
when we permanently settled in Canada in June 2002. Roberto was six years old
and Rodolfo was only 4. Rodolfo has spent almost half of his life in Canada and
is only familiar with the Canadian school system. All of their friends, all of
their attachments, and sociocultural references are Quebecois. They built their
childhood in Canada. It would be unfortunate to uproot them from this life
that is theirs today. Returning to Mexico would greatly upset them, especially
with regard to Rodolfo considering all of the circumstances involving his
father. He has already suffered a great deal and I worry about what will happen
to him if we have to leave Canada. He is very strong and mature for his age, but
there are limits to what a young child can overcome. Moreover, since our meeting
with the removal officer Lise Petitclerc, on May 8, 2007, I notice that both of
my sons are afraid. They wake up in the middle of the night afraid that I may
already be gone. This deportation order troubles them enormously. (Emphasis
added.)
SERIOUS ISSUE
[23]
The
Court of Appeal of Quebec’s attention to the children’s best interests in this
case is significant.
[24]
Ms.
Arias-Garcia has a profession and her employer wants to keep her because of her
specialization and devotion. The Court notes the fact that her job is not in a
big city but rather in a rural area.
Undue hardship in regard to the children’s
best interests and integration
[25]
This
involves a very specific physical risk and psychological harm to a young
vulnerable child and also, the integration of the entire family that has taken
place.
[26]
The
officer accepts the reality of both of Rodolfo’s abductions by his father and the serious
risk of other abductions, but, nevertheless, finds that there is not any
significant harm considering that the principal applicant could recover him
afterward (the physical and psychological state of the child, Rodolfo, was not
adequately addressed by the officer).
[27]
In
other words, the harm to a child who may be abducted by his father is
inexistent or negligible if [translation]
“[the mother] recovers him afterward”, and this irrespective of the duration of
the abduction, the conditions in which her son is found, and the sequelae (reference
is made to the Court of Appeal of Quebec’s judgment and the affidavit before
the Supreme Court of Canada).
[28]
It
is impossible to disregard that it is in the child’s interest that he not be
abducted a third time (see Mr. Zuloaga’s letter on how long it would take to
put an end to the abduction).
[29]
The
officer disregarded the emotional and psychological harm that the children will
suffer if they leave, dismissing every consideration particular to their case.
[30]
The
letter from Diane Arsenault of the Centre régional de santé et de services
sociaux de Rimouski (dated March 16, 2007), specifies:
[translation]
My work in mental health for over 30 years
has often put me in contact with young people in difficulty; rarely does this
clientele come from a family unit that is as close as the one in this case. The
children must live in a stable emotional environment, whether it is the family,
social, or environmental milieu. At this time, the lives of these two children
could not be better adapted. They live in harmony in their living environment
thanks to the affection and the courage of their mother who is unrelenting in
providing them with what they need so they can become stable adults, despite
the difficult and uncertain situation.
It would be harmful to
their health to make them relive other trauma such as leaving for a country
that is foreign to them and where their father could not provide them with stability
. . .
[31]
With respect, it is clear that the respondents’
officer disregarded Guide IP 5, paragraph 5.8, on the child’s best interests,
according to which the following must be taken into account:
•
The
age of the child;
•
the
degree of the child’s establishment in Canada;
•
the
child’s links to the country concerned;
•
the
impact to the child’s education;
•
Whether the child would be placed in a situation of risk.
[32]
Indeed, the analysis of harm to the children
from the point of view of their integration over four years is significant:
•
The
applicants arrived in Canada on June 24, 2002, i.e. five years ago, apart from
a brief stay in Mexico in 2003;
•
The
children’s integration, in particular Rodolfo’s, must be analysed from a
particular point of view that goes beyond the loss of a school year;
•
The
letter from Ms. Arsenault of the Centre régional de santé et de services
sociaux de Rimouski, that refers to the harmful effect it will have on the
children if they leave their current environment and the trauma they will
suffer.
[33]
The immigration officer does not refer to the
harm that will be suffered by the child Rodolfo and the other applicants if
they leave, even if this major harm is abundantly documented. This factor was
not addressed by the officer:
[17] . . . the more important the evidence that is not mentioned
specifically and analyzed in the agency’s reasons, the more willing a court may
be to infer from the silence that the agency made an erroneous finding of fact “without
regard to the evidence”: Bains v. Canada (Minister of Employment and
Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency’s
burden of explanation increases with the relevance of the evidence in question
to the disputed facts. …
(Cepeda-Gutierrez
v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35,
[1998] F.C.J. No. 1425 (QL).)
[15] With regard to the university documents submitted, the Board’s
statement that “it is surprised by their production” at the second hearing when
the applicant had clearly stated he would do so at the first hearing, casts a
doubt on the Board’s objectivity since it clearly fails to consider the
applicant’s testimony on this point.
(Afkham v. Canada
(Minister of Citizenship and Immigration), 2004 FC 180, [2004] F.C.J. No. 208
(QL).)
[6] The officer did take
into account the submissions related to economic and emotional hardship.
However, his finding that this was not undue, undeserved or disproportionate
hardship was based, at least in part, on the fact that the separation would be
minimal in length. This error may well have had a substantial impact
on the other factors considered by the officer, in the circumstances of this
particular case. I am unable to speculate as to whether the result would have
been the same but for the error, and I therefore allowed the application for
judicial review . . .
(Rhman v. Canada
(Minister of Citizenship and Immigration), 2004 FC 644, [2004] F.C.J. No. 772
(QL).)
[34]
Paragraphs
45 to 49 of the principal applicant’s affidavit are noted for the purpose of
understanding the motion:
[translation]
45.
The
respondents’ officer overlooked that I could obtain permanent residence in a
few months if I were not afraid that I would never get out of Mexico with
Rodolfo if I were to return. This proves the seriousness of the harm in the
event of departure or removal from Canada.
46.
The
respondents’ officer assumes that I can “exercise [my] profession in Mexico, as
I did before arriving in Canada, which would provide the children with a stable
situation”.
47.
However,
the respondents’ officer did not have any information to support her assumption
that I could practice my profession again after a five-year absence.
48.
The
officer also disregarded the fact that I do not have any revenue or assets (moveable
or immoveable) in Mexico.
49.
Finally,
the respondents’ officer failed entirely to consider the public interest,
namely my employer’s need – in the health care field – to keep me because of
the lack of qualified professionals in Rimouski, which was one of the grounds
for the permanent residence application . . .
[35]
Based
on the lack of communication with the principal applicant, the officer made
findings that were not based on the information that she had before her,
contrary to the decisions of this Court:
[8] I agree that no obligation exists but,
instead of going further and asking questions which might have provided greater
contextual detail, I find that the Immigration Officer speculated on the
information provided. There is no evidence upon which the Immigration Officer
could draw the conclusion that, if the Applicant is required to go outside of
Canada to be landed, she and her husband would have “fruitful years together in
the future, due to their age”. It is agreed that an application for landing
made from Guyana would take at least one year. Given the notorious fact that
the Applicant’s husband is already passed his expected longevity, and given the
fact that the Applicant herself is approaching her longevity, I find that it is
unreasonable for the Immigration Officer to speculate on their future life
together.
(Ramprashad-Joseph v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1715, [2004] F.C.J. No. 2091 (QL).)
Distinction
between a PRRA application and an HC application
[36]
The
officer did not consider the distinction between the HC application and the PRRA
application:
[7] While PRRA and H&C
applications take risk into account, the manner in which they are assessed is
quite different. In the context of a PRRA, “risk” as per section 97 of IRPA
involves assessing whether the applicant would be personally subjected to a
danger of torture or to a risk to life or to cruel and unusual treatment or
punishment.
[8] In an H&C application,
however, risk should be addressed as but one of the factors relevant to
determining whether the applicant would face unusual, and underserved or disproportionate
hardship. Thus the focus is on hardship, which has a risk component, not on
risk as such.
[9] In general terms, it is more
difficult for a PRRA applicant to establish risk than it is for an H&C
applicant to establish hardship (see: Melchor v. Canada (Minister of
Citizenship and Immigration), [2004] F.C.J. No. 1600, 2004 FC 1327; Dharamraj
v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 853,
2006 FC 674; and Pinter v. Canada (Minister of Citizenship and Immigration),
[2005] F.C.J. No. 366, 2005 FC 296).
[10] In recent years, the PRRA
normally precedes the H&C or is decided at the same time. Thus the present
case is a little unusual.
[11] In Pinter, above,
Chief Justice Lutfy wrote:
[5] In my view, it was an error in law
for the immigration officer to have concluded that she was not required to deal
with risk factors in her assessment of the humanitarian and compassionate
application. She should not have closed her mind to risk factors even though
a valid negative pre-removal risk assessment may have been made. There may well
be risk considerations which are relevant to an application for permanent
residence from within Canada which fall well below the higher threshold of risk
to life or cruel and unusual punishment.
[Emphasis added]
[12] In the current case, the
officer considered the risk factors set out in the negative refugee claim
decision, and updated them. Although he considered Mr. Singh Sahota’s
connections with Canada, as far as India is concerned, although he used the
humanitarian and compassionate form, in reality all he did was assess risk, not
hardship. For instance he said, “in assessing the risk invoked by the applicant
I note that they have, in substance, been previously considered by the IRB.” It
may well be that a risk may not be so sufficient as to support a refugee claim
under sections 96 or 97 of IRPA, but still be of sufficient severity to
constitute a hardship.
[13] The officer applied the wrong
test, and therefore Mr. Singh Sahota was not given a fair hearing. Although
there are rare occasions when it can be said that the result would have been
the same (see: Mobil Oil Canada Ltd. v. Canada Newfoundland Offshore
Petroleum Board, [1994] 1 S.C.R. 202), the general rule, and the rule which
applies here, is that it is not up to the Court to speculate as to what the
result might have been had the proper test been followed (see: Cardinal v.
Kent Institution, [1985] 2 S.C.R. 643.
(Sahota, supra.)
IRREPARABLE HARM
[37]
The
Court refers to the principal applicant’s affidavit, and points out the
following:
•
The
abductions and threats by Mr. Valdes, Rodolfo’s father, which are not disputed
by the respondents;
•
The
father’s tactics to date, including the repeated lies (not to mention the total
lack of financial support, contrary to the law);
•
The
sequelae that the children will suffer again, having witnessed violence and
abductions and the immediate threat to their safety and their stability if they
are returned to Mexico;
•
The
children’s terror at the mere mention of returning to Mexico.
[38]
The children are at risk of irreparable harm if
they return to Mexico, which a judgment granting the application for review on
the merits will not necessarily change.
[39]
The principal applicant did not leave Mexico for
a better financial life – she is a professional and had her own clinic – she
left to protect her youngest son from a constant threat.
[40]
The principal applicant and her children do not
have a place to live in Mexico, or any financial resources in that country, but
she has a profession and a job in Canada where she is appreciated by those
around her.
[41]
In the two judgments of July 2005, Harrington J.
decided that there was irreparable harm, [translation] “in particular the abduction”.
[42]
The respondents do not deny this harm but say
that it is not irreparable because the police can retrieve the child.
[43]
The applicants specified that:
(1) This
argument is the same one that was made before Harrington J. and that he
rejected it in both of his judgment (namely the admission of the reality of the
abductions, but the distinction between the abduction itself and the fact that
the child would be found if he were abducted);
(2) The
facts have not changed since these judgments, and the integrity of the judicial
system and stare decisis is a value that must be preserved;
(3) The
requirements for an application for stay are different from those for a PRRA
application, just as the requirements for an HC application are different from
those for a PRRA application; each application has its subject and its purpose.
[44]
The
Court notes the following passage from the judgment of Mr. Justice Edmond Blanchard
in Almrei v. Canada (Minister of Citizenship and Immigration), 2003 FC 1394,
[2003] F.C.J. No. 1790 (QL):
[24]
I am in agreement
with the view expressed by Mr. Justice Robertson in Suresh v. M.C.I.,
[1999] 4 F.C. 206 (F.C.A.) at paragraph 13, where the learned Justice stated
that the issue of irreparable harm can be answered in one of two ways. The
first involves an assessment of the risk of personal harm if a person is
deported to a particular country, which is one of the key questions at issue in
the underlying application to this stay application. The second involves
assessing the effect of a denial of a stay application on a person’s right to
have the merits of his or her case determined and to reap the benefits
associated with a positive ruling.
[25]
At paragraph 14 of
his reasons for decision, the learned Justice stated that, should the applicant
be deported prior to the hearing of this appeal, the pending appeal will be
rendered “moot” or “nugatory”. He explained:
Assuming that Mr. Suresh is deported
and detained in Sri Lanka prior to that proceeding, and assuming that he is
successful on appeal, Mr. Suresh’s successful constitutional challenge would be
unlikely to release him and, therefore, he would be unable to avail himself of
the fruits of his victory, most likely, the right to remain in Canada until
such time as his case is disposed of in accordance with the Charter. Were he to
remain in Canada and be successful on his appeal, I take it for granted that
the Minister would be unable to act on the deportation order.
[26]
I am of the view
that the above reasoning of Mr. Justice Robertson in Suresh, supra,
is applicable to the case at bar. On the evidence, it is unlikely that Syrian
authorities will release the applicant should he be successful on his
underlying application, and he would therefore be unable to avail himself of
the “fruits of his victory”. Consequently, I find it unnecessary to fully
consider and decide the risk to the applicant if he is returned to Syria and
whether that risk constitutes irreparable harm. For the purposes of this stay
application, I find that the applicant will suffer irreparable harm if his stay
is not granted, on the basis that removal will render his pending application “moot”
or “nugatory”.
BALANCE OF
CONVENIENCE
[45]
The
Court repeats its analysis for this test, noting again the two judgments by Harrington
J. in the months of July 2005.
[46]
The
Court notes the harm that will be suffered by the applicants if the stay is not
granted, which is greater than the inconvenience for the respondent.
[47]
The
applicants are not a threat to Canada, and have acted in accordance with the Canada’s
laws since their arrival.
[48]
The
principal applicant has a position in Rimouski; she is a professional and
appreciated in her environment.
[49]
A
reference is made to the documents provided by Dr. Pierre Couture, her boss.
[50]
The
public interest will not be served by an immediate deportation as opposed to a
stay until there is a judgment by this Court on the applications for leave and
for judicial review filed in this case.
CONCLUSION
[51]
For
all of these reasons, the motion to stay the enforcement of the removal orders is
allowed.
JUDGMENT
THE COURT ORDERS
that the motion to stay the enforcement
of the removal orders be allowed until there is a final judgment regarding the
applicants.
“Michel
M.J. Shore”
Email this Content