Date: 20090106
Docket: IMM-5369-08
Citation:
2008 FC 1399
Ottawa, Ontario, January 6, 2009
PRESENT:
The Honourable Mr. Justice Shore
BETWEEN:
ÉRIC FRANCIS TCHOUMBOU
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND
AMENDED JUDGMENT
(Amendment
to style of cause only)
I. Overview
[1]
[56] This
Court has often held that allegations of risk determined to be unfounded by
both the Board and the PRRA cannot serve as a basis for establishing
irreparable harm in the context of an application to stay (Singh v. Canada (Minister of
Citizenship and Immigration), 2005 FC 145,
137 A.C.W.S. (3d) 156).
This principle relative to credibility is adaptable in the context of the
failure to reverse the presumption of state protection.
(Malagon v. Canada
(Minister of Citizenship and Immigration), 2008 FC 1068, [2008] F.C.J. No. 1586 (QL)).
[2]
The decisions of this Court also indicate that
in assessing the balance of convenience, the public interest must be taken into
consideration (Membreno-Garcia v. Canada (Minister of Employment and
Immigration), [1992] 3 F.C 306, [1992] F.C.J. No. 535 (QL); Blum v.
Canada (Minister of Citizenship and Immigration), (1994) 90 F.T.R. 54, 52
A.C.W.S. (3d) 1099).
[3]
In this case, the applicant was excluded under Articles
1F(a), 1F(b) and 1F(c) of the Convention.
[4]
Accordingly, the balance of convenience favours
the public interest in the immigration process set out in the IRPA taking its
course.
II. Judicial proceedings
[5]
The
applicant, Alain Tchoumbou, a citizen of Cameroon, filed an application to stay
his removal to Cameroon, scheduled for January 5, 2009.
[6]
This
application was made together with an application for leave against the
decision of a removals officer made on December 3, 2008, denying Mr. Tchoumbou
an administrative stay of his removal. Mr. Tchoumbou had applied for a
stay of the removal because he intended to file an application for permanent
residence under subsection 25(1) of the Immigration and Refugee Protection
Act, S.C. 2001, c. 27 (IRPA).
III. Facts
[7]
The
applicant is a citizen of Cameroon and is 23 years old.
[8]
He
arrived in Canada on September
10, 2005, and claimed refugee protection on September 26, 2005.
[9]
On
November 9, 2007, the Refugee Protection Division (RPD) of the Immigration and
Refugee Board (IRB) rejected Mr. Tchoumbou's claim for refugee protection,
having found that he was excluded under Articles 1F(a), 1F(b) and
1F(c) of the United Nations Convention Relating to the Status of
Refugees (Convention).
[10]
On
June 11, 2008, Madame Justice Danièle Tremblay-Lamer of the Federal Court
dismissed Mr. Tchoumbou's application for judicial review (Tchoumbou v.
Canada (Minister of
Citizenship and Immigration), 2008 FC 585, [2008] F.C.J. No. 920 (QL)).
[11]
On
August 26, 2008, Mr. Tchoumbou received the documents he needed for filing
an application for a pre‑removal risk assessment (PRRA) under
subsection 112(3) of the IRPA.
[12]
On
November 19, 2008, the officer denied Mr. Tchoumbou's PRRA application because
he had failed to establish that he was subject to a risk of torture or
persecution or cruel or unusual treatment or punishment, or to a risk to his
life, if he were to be removed to the country of his nationality.
[13]
On
November 24, 2008, Mr. Tchoumbou was given a document by the Canada Border
Services Agency (CBSA) setting an interview date for December 3, 2008.
[14]
On
December 3, 2008, at the interview, the officer confirmed to Mr. Tchoumbou that
he was being removed, but nonetheless gave him until January 5, 2009.
[15]
Mr. Tchoumbou
alleges that on August 2, 2008, he married Stéphanie Blanchet, and submitted a
sponsored application for permanent residence on humanitarian grounds (H&C)
on October 20, 2008. However, the respondent submits that no evidence to
corroborate the filing of the H&C application has been provided by
Mr. Tchoumbou in support of this stay application.
IV. Analysis
[16]
In
order to assess the merits of the stay application, this Court must determine
whether the applicant has met the tests laid down in the decision of the Federal
Court of Appeal in Toth v. Canada (Minister of Employment and Immigration)
(1988), 86 N.R. 302, 11 A.C.W.S. 3d 440 (F.C.A.).
[17]
In
that case, the Federal Court of Appeal stated three tests which it took from
the case law relating to injunctions, and more specifically the decision of the
Supreme Court of Canada in Manitoba (Attorney General) v. Metropolitan
Stores (MTS) Ltd., [1987] 1 S.C.R. 110. The three tests are
·
whether
there is a serious issue;
·
whether
there will be irreparable harm; and
·
the
balance of convenience.
[18]
Mr. Tchoumbou
has not established that there is a serious issue to be tried with regard to
his application for leave against the decision made by the deciding officer,
that irreparable harm will result from his removal to Guinea and that he will
suffer inconvenience greater than the inconvenience to the public interest in
the immigration process set out in the IRPA taking its course.
A. Serious
issue
(i) Legal
framework and limited discretion of the removals officer
[19]
The
enforcement of removal orders is governed by section 48 of the IRPA:
|
48. (1) A removal order is
enforceable if it has come into force and is not stayed.
(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.
|
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.
(2) L’étranger visé par la mesure de
renvoi exécutoire doit quitter immédiatement le territoire du Canada, la
mesure devant être appliquée dès que les circonstances le permettent.
|
[20]
Mr.
Justice Robert Barnes observed, at paragraph 19 of the judgment in Griffiths v. Canada (Solicitor
General),
2006 FC 127, 46 A.C.W.S. (3d) 123, that a
deferral is “a temporary measure necessary to obviate a serious, practical
impediment to immediate removal”.
[21]
The
case law indicates that enforcement officers enjoy a degree of flexibility in
the exercise of what is nonetheless a limited discretion; they may have regard
to various factors that could interfere with or delay the performance of their
duty to remove the persons concerned, for example, factors relating to the
personal safety or health of an individual subject to a removal order (Sharma
v. Canada (Minister of Citizenship and Immigration), 2007 FC 1144, 161
A.C.W.S. (3d) 957 at paragraph 22; Chir v. Canada (Minister of Public
Safety and Emergency Preparedness), 2006 FC 242, [2006] F.C.J. No.
317 (QL) at paragraph 20; Boniowski v. Canada (Minister of Citizenship
and Immigration), 2004 FC 1161, 133 A.C.W.S. (3d) 326 at paras. 11-12;
Prasad v. Canada (Minister of Citizenship and Immigration), 2003 FCT 614,
123 A.C.W.S. (3d) 533; Pavalaki v. Canada (Minister of Citizenship and
Immigration) (1998), 78 A.C.W.S. (3d) 566, [1998] F.C.J. No. 338 (QL)).
[22]
In
Canada (Minister of Citizenship and Immigration) v. Varga,
2006 FCA 394, [2007] 4 F.C.R. 3 at paragraph 16, the Federal Court of Appeal
noted the “narrow scope of removals officers’ duties” and observed that “their
obligation, if any, to consider the interests of affected children is at the
low end of the spectrum”.
[23]
In
this case, Mr. Tchoumbou asked the removals officer for a stay of his
removal because he intended to file an H&C application under subsection
25(1) of the IRPA.
(ii)
The removals officer exercised his limited discretion reasonably
[24]
Mr. Tchoumbou
argued in his application that the removals officer did not have regard to the
fact that he is married.
[25]
In
his notes, the removals officer wrote that Mr. Tchoumbou had asked him to
defer the removal because he intended to file an H&C application. The
officer checked, and no H&C application had been received.
[26]
There
is no indication in the respondent’s record that Mr. Tchoumbou ever
submitted an H&C application to Vegreville or Montréal (Exhibit “A” to the
affidavit of Ketsia Dorceus).
[27]
Mr. Tchoumbou
did not include any documents in his application record to prove that he did in
fact file an application for landing sponsored by his spouse, or that he is in
fact married.
[28]
In
addition, even if Mr. Tchoumbou had in fact filed an H&C application,
he could not have been granted an administrative stay of removal because he is
excluded under Articles 1F(a), 1F(b) and 1F(c) of the
Convention.
[29]
The
public policy under subsection 25(1) of the IRPA to facilitate processing in the
spouse and common-law partner in Canada class does not automatically allow all
spouses of a Canadian citizen or permanent resident to remain in Canada during
processing of their application for permanent residence. That policy
establishes exceptions, which Mr. Tchoumbou falls into, in particular because
of his exclusions.
[30]
In
addition, it is settled law that an H&C application by a spouse is not an
obstacle to removal of the applicant (Patterson v. Canada (Minister of
Citizenship and Immigration), 2008 FC 406, 166 A.C.W.S. (3d) 300 at
paragraph 21; Zenunaj v. Canada (Minister of Citizenship and Immigration),
2005 FC 1715, 144 A.C.W.S. (3d) 926; Shchelkanov v. Canada
(Minister of Employment and Immigration) (1994), 76 F.T.R.
151, 47 A.C.W.S. (3d) 783; Okoawoh v. Canada (Minister of Citizenship and
Immigration) (1996), 60 A.C.W.S. (3d) 816, [1996] F.C.J. No. 24 (QL)).
[31]
A
pending application for landing does not raise a serious issue.
Mr. Tchoumbou may file an application, in the normal course of the
process, from outside Canada, as a member of the family class.
[32]
In
Canada,
applications sponsored by a spouse, like H&C applications, are processed
independently of the removal process. They do not operate to interrupt removals
until decisions are made regarding the applications. If Parliament had intended
that this be the case, the Act would provide for a stay of removal when the
applications are filed (Patterson and Shchelkanov,
supra).
[33]
With
respect to Mr. Tchoumbou’s arguments under the Canadian Charter of
Rights and Freedoms, Part I, Schedule B to the Canada Act, 1982,
1982, c. 11 (U.K.) (Charter) and international law, it is settled law that
removing a person after a complete pre-removal risk assessment is done is not
contrary to sections 7 and 12 of the Charter (Suresh v. Canada (Minister of
Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3; Chieu
v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3,
[2002] 1 S.C.R. 84; Al Sagban v. Canada (Minister of Citizenship and
Immigration), 2002 SCC 4, [2002] 1 S.C.R. 133). With respect to
Article 3 of the Convention Against Torture, Mr. Justice Martineau said
the following, in Sidhu v. Canada (Minister of
Citizenship and Immigration), 2004 FC 39, 128 A.C.W.S. (3d) 559:
[26] Paragraph 97(1)(a) of
the Act refers specifically to the notion of torture contained in Article 1 of
the Convention and therefore integrates the principles contained in Article 3
of the Convention. Consequently, the answer to this question is contained in
the law itself and does not require certification..
[34]
Accordingly,
this case did not provide a basis for applying any administrative deferral of
the removal that would have required that the officer not proceed with the
removal.
B.
Irreparable harm
[35]
In
this case, Mr. Tchoumbou alleges that if he is removed to Cameroon he will
suffer irreparable harm because (i) he will be separated from his spouse, and
(ii) he will be subject to a risk of inhumane treatment because of his
political opinion.
(i)
Separation from his spouse
[36]
The
fact that Mr. Tchoumbou will be separated from his spouse is not
sufficient reason to find that he will suffer irreparable harm if he is
removed.
[37]
Mr. Tchoumbou
has offered nothing to show what harm his spouse or he would suffer if he were
to be returned to Cameroon. In fact, no evidence was produced to
corroborate Mr. Tchoumbou’s marriage, be it a marriage certificate or an
affidavit from Ms. Blanchet, his spouse, in support of this application.
[38]
The
recent comments made in Malagon, supra, apply here:
[2] In regard to upsetting the
family and the separation that must be endured by Ms. Malagon’s spouse,
this is not irreparable harm, but rather a phenomena inherent to removal (Malyy
v. Canada (Minister of Public Safety and Emergency
Preparedness), 2007 FC 388,
156 A.C.W.S. (3d) 1150 at paragraphs 17-18; Sofela v. Canada (Minister of Citizenship and Immigration), 2006 FC 245, 146 A.C.W.S. (3d) 306 at
paragraphs 4 and 5; Radji v. Canada (Minister
of Citizenship and Immigration), 2007
FC 100, 308 F.T.R. 175 at paragraph 39). To find otherwise would
render impracticable the removal of individuals who do not have the right to
reside in Canada. Further, as pointed out in Golubyev v. Canada (Minister of
Citizenship and Immigration), 2007 FC 394,
156 A.C.W.S. (3d) 1147 at paragraph 12: irreparable harm is a strict test
in which serious likelihood of jeopardy to the applicant’s life or safety
must be demonstrated.
(See
also: Malagon, supra at paragraph 57; Javier
v. Canada (Minister of Public Safety and Emergency Preparedness), 2007 FC 445, 160 A.C.W.S. (3d) 526 at paragraph 17; Sahota v. Canada (Minister of Citizenship and Immigration), 2002 FCT 331,
112 A.C.W.S. (3d) 1119 at paragraphs 5-6; Melo v. Canada (Minister of Citizenship and Immigration) (2000), 188
F.T.R. 39, 96 A.C.W.S. 278 at paragraphs 20-21; Saibu v. Canada (Minister of Citizenship and Immigration), 2002 FCT 103,
111 A.C.W.S. (3d) 980 at paragraph 10; Kerrutt v. Canada (Minister of Employment and Immigration) (1992), 53 F.T.R. 93, 32 A.C.W.S. (3d) 621; Calderon
v. Canada (Minister of Citizenship and
Immigration) (1995), 92 F.T.R. 107, 54
A.C.W.S. (3d) 316).
(ii) Risk of
inhumane treatment
[39]
Mr. Tchoumbou
claims that he will be subject to a risk of inhumane treatment in the event
that he is returned to his country, because he is considered to be an opponent
of the party in power in Cameroon.
[40]
We
should note that the RPD concluded that Mr. Tchoumbou is a person
described in Articles 1F(a), 1F(b) and 1F(c) of the
Convention, for these reasons:
·
The
documentary evidence establishes that the Cameroon People’s Democratic Movement
(CPDM) is the party in power and that the police repress opponents of the
government, using torture and other cruel methods;
·
The
applicant was in the CPDM militia and “was part of a paramilitary organization
serving the party or the repressive apparatus of the state that keeps that
party in power”. More specifically, the applicant’s mission was to infiltrate
opposition parties in order to identify the leaders of demonstrations. From
this, the RPD concluded that the applicant committed crimes against humanity,
and is therefore also guilty of acting contrary to the purposes and principles
of the United Nations;
·
The claimant
also worked as a pimp for the CPDM, in that he was required to find, and did
find, girls whom he alleged that he believed were minors, for the cousin of
President Paul Biya, this being a serious non-political crime. In fact, under paragraphs
212(1)(a), (b), (d), (h), (i) and (j)
of the Criminal Code of Canada, these acts are punishable by
a maximum sentence of 10 to 14 years’ imprisonment; and
·
The
applicant was not credible. The RPD did not believe the claims on which the
applicant’s refugee protection claim was based, that he had been arrested,
detained and tortured by government authorities because of his refusal to
comply with the CPDM’s orders to torture opponents of the regime, and that
after he escaped from prison he was pursued.
[41]
It is important to note that this Court has
affirmed the reasonableness of the RPD’s decision, by dismissing the
application for judicial review of that decision. We would note the following
passages from the decision in Tchoumbou, supra:
[37] In my opinion, it was reasonable for the panel to infer that
the applicant had a shared common purpose because he joined the CPDM’s militia
between August 2003 and May 2004, infiltrated the opponents of the regime and
was unable to
establish that he left the CPDM because he was against the repression. He
stated the following in his PIF:
I was a member of the youth section of
the political party called the “Cameroon People’s Democratic Movement” (YCPDM)
of President Paul BIYA who is the current head of state of my country. The leader
of the YCPDM put me in with a group of members that had to do certain tasks for
the government.
First, the President’s cousin
started using me to call or find girls for him; then, I would be sent to
infiltrate the political opposition parties that were demonstrating against the
government in order to identify the organizers and those who incited the others
to take to the street. I also identified those who were sounding alarms and who
encouraged the demonstrators to do anything they could to disturb the peace and
to defeat the current government’s actions.
[38] It is difficult to
subsequently contend that he never infiltrated opposition parties and that his
only task was to find girls for the President’s cousin. He described in detail
his role in identifying members of the opposition, and therefore I believe that
the panel was justified in determining that the applicant was not credible when
he attempted to say the opposite at the hearing.
[39] As for failing to disassociate
himself from the group at the earliest opportunity,
the applicant alleged that he was arrested and tortured because he refused to
follow the orders to beat opposition members in May 2004. The panel determined
that he was not credible on this point considering his statements at the port
of entry and in his PIF as well as the confused explanations he provided when
he testified at the hearing.
[40] Since the applicant had to
have been aware of the abuses committed, including the torturing of opponents
whom he identified once they were arrested and detained and since he did not
establish in a credible manner that he disassociated himself from the group at
the earliest opportunity, it was reasonable for the panel to conclude that
there were serious reasons to believe that he was complicit in crimes against
humanity and in actions that were contrary to the purposes and principles of
the United Nations.
[42]
The PRRA officer concluded that Mr. Tchoumbou was
not at risk of being tortured or persecuted or of being subject to cruel and unusual
treatment or punishment or to a risk to his life if he were returned to Cameroon, because he
failed to establish the central facts of his application.
[43]
The PRRA officer stated that, having regard to
the evidence as a whole, it appeared that Mr. Tchoumbou is in fact a
member of the youth wing of the party, the CPDM, which is responsible for
political repression and numerous human rights violations.
[44]
In addition, the PRRA officer concluded that
Mr. Tchoumbou
had not established that he had disobeyed his party and was therefore
considered to be a political opponent and was wanted by the authorities.
[45]
The following comments by this Court are
relevant:
[55] The risks of return were
already assessed in two administrative proceedings, by the panel and by the
officer, and both made the same findings. Further, this Court confirmed the
reasonableness of the Board’s decision refusing the ALJR against the Board’s
decision. Since the order of this Court, the situation has not changed, as the
PRRA confirmed.
[56] This Court has often held that
allegations of risk determined to be unfounded by both the Board and the PRRA
cannot serve as a basis for establishing irreparable harm in the context of an
application to stay (Singh v. Canada (Minister of
Citizenship and Immigration), 2005 FC 145,
137 A.C.W.S. (3d) 156).
This principle relative to credibility is adaptable in the context of the
failure to reverse the presumption of state protection.
(Malagon, supra; see also Javier,
supra at paragraphs 15-16).
[46]
In addition, this proceeding is not the
appropriate forum for seeking an assessment of the reasonableness of the
decision regarding his PRRA application.
[47]
Mr. Tchoumbou has not met his burden of proving that he will suffer irreparable
harm if he is returned to Cameroon.
C. Balance
of convenience
[48]
Subsection 48(2) of the IRPA imposes an
obligation to enforce a removal order as soon as is reasonably practicable.
[49]
In this case, because there is no serious issue
or irreparable harm, the balance of convenience favours the Minister, who has
an interest in the removal order made against the applicant being enforced on
the date set out in the order, January 5, 2008 (Mobley v. Canada
(Minister of Citizenship and Immigration), [1995] F.C.J. No. 65
(QL)).
[50]
The decisions of this Court also indicate that
in assessing the balance of convenience, the public interest must be taken into
consideration (Membreno-Garcia and Blum, supra).
[51]
In this case, Mr. Tchoumbou was excluded under Articles 1F(a), 1F(b) and 1F(c)
of the Convention.
[52]
Accordingly, the balance of convenience favours
the public interest in the immigration process set out in the IRPA taking its
course.
V. Conclusion
[53]
Mr. Tchoumbou’s
application for a stay is dismissed.
JUDGMENT
THE COURT ORDERS that the application for a stay of removal be dismissed.
“Michel M.J. Shore”
Certified
true translation
Susan Deichert,
Reviser
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