Docket: IMM-8265-11
Citation: 2011 FC 1381
Montréal, Quebec, November 29, 2011
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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JOZELLE MICHELLE JACKSON
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
The Applicant’s motion for a stay of the execution is in regard
to a removal scheduled to be carried out on Thursday, December 1, 2011.
[2]
The underlying judicial review application challenges the
humanitarian and compassionate application [H&C] refusal, dated September
29, 2011, which found that there was no unusual, underserved or
disproportionate hardship to the Applicant if her application was not processed
from within Canada.
[3]
From the Applicant’s motion record it would appear that she is
also attempting to establish that there is a “serious issue” to be tried (in
file IMM-8264-11, with regard to the refusal of her Pre-Removal Risk Assessment
[PRRA], on which no motion for a stay of removal has been filed but which is
“piggy-backed” onto the motion of this file [IMM-8265-11]).
II. Background
[4]
The Applicant, Ms. Jozelle Michelle Jackson, is neither a
permanent resident of Canada, nor a Convention refugee. As such, she is the
subject of an enforceable removal order, does not have any legal status to
remain in Canada, and pursuant to subsection 48(2) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA],
must leave immediately.
[5]
On March 5, 2002, Ms. Jackson entered Canada on a temporary
visitor’s visa and remained illegally in the country past the authorized date.
[6]
In September 2005, about three and a half years after Ms. Jackson’s
arrival in Canada, she made a claim for refugee protection on the basis of her
fear of her brother Allison, with whom she lived in St-Vincent, and who
allegedly assaulted and threatened her because she told a neighbor that he was
the masked man who had assaulted him.
[7]
Her children, 5 year old Krystal Jhanah and 3 year old Kamarrie Jovon,
were both born in Canada, in 2006 and 2008 respectively.
[8]
On August 3, 2006, the Refugee Protection Division [RPD] rejected
Ms. Jackson’s claim because she failed to rebut the presumption that effective
and adequate State protection was available to her in St-Vincent; although she
never denounced her brother to any authority in her country, her brother had
been charged, arrested on several occasions and prosecuted by St-Vincent’s
police for other infractions. The RPD also noted that Ms. Jackson’s delay in
seeking refugee protection reflected negatively on her alleged fear.
[9]
On August 16, 2006, leave to seek judicial review of the negative
RPD decision was denied by the Federal Court.
[10]
On January 29, 2007, Ms. Jackson submitted an H&C application
based on (1) her establishment and ties in Canada; (2) the best interest of her
children; and (3) the same allegations of risk as those before the RPD and in
her PRRA application.
[11]
On January 29, 2011, Ms. Jackson submitted a PRRA application
based on new allegations of risk and fear of her ex-boyfriend, Mr. Kamal Baptiste,
who abused her in Canada, and also on the same allegations of risk and fear as
those submitted, assessed and rejected by the RPD with respect to her brother
Allison.
[12]
The H&C and PRRA applications were decided by the same
officer.
[13]
On September 22, 2011, Ms. Jackson’s PRRA application was
rejected because the PRRA officer found that, although domestic violence
remains a serious problem in St Vincent, the government is actively seeking to
address the issue and a number of reasonable avenues exist by which Vincentian
women may seek the protection of their State. The PRRA officer found that Ms.
Jackson’s evidence was insufficient to rebut the presumption that the
Vincentian State was unwilling or incapable of protecting her, especially, in
light of the facts (1) that criminal charges were brought against Mr. Baptiste
in Canada, which would assist her in convincing Vincentian authorities of the
threat against her; and (2) that the Applicant has a friend who is a police
constable in St-Vincent, who could assist her in obtaining protection.
[14]
Regarding Ms. Jackson’s fear of her brother Allison, the PRRA
officer noted that no new facts or “new evidence” pursuant to paragraph 113(a)
of the IRPA had been presented by Ms. Jackson since the RPD’s
decision. As such, the PRRA officer could not conclude differently from the RPD.
[15]
On September 29, 2011, Ms. Jackson’s H&C application was
rejected because the PRRA officer determined, based on the limited evidence
produced, that (1) the Applicant has not established herself in Canada to such
a degree that returning to St-Vincent would constitute an unusual and
undeserved or disproportionate hardship; (2) she did not establish that
resettling in St-Vincent would negatively impact the best interests of her
children, in light of their very young age, the presence of their mother and
extended family in St-Vincent and the fact that they will retain their Canadian
citizenship which will permit them to return to Canada whenever they choose;
and (3) given the availability of State protection and the other services
available to the Applicant, she would not experience hardship on the basis of
the risk factors presented.
[16]
On November 14, 2011, Ms. Jackson filed applications for leave
and for judicial review against both the PRRA (IMM-8264-11) and H&C
(IMM-8265-11) decisions.
[17]
On November 18, 2011, Ms. Jackson’s removal from Canada was
scheduled to be executed on December 1, 2011.
III. Issue
[18]
Has the Applicant met the three-prong test set out in Toth v Canada (Minister
of Employment and Immigration) (1988), 86 NR 302 (FCA)?
[19]
The Court is in full agreement with the position of the
Respondent.
[20]
The Applicant is not entitled to a stay of the removal order. She
has failed to demonstrate that she satisfies any of the three-pronged
conjunctive test criteria:
(1) no serious
issue to be argued in their underlying application;
(2) absence of
an irreparable harm; and,
(3) the balance
of convenience favours the Minister.
[21]
The
granting of a stay is an exceptional measure as stated by Justice J. François Lemieux
in Jordan v Canada (Minister of Citizenship and Immigration),
[2000] FCJ No 1076 (QL/Lexis)
(TD), and is not to be based on equity considerations:
[22] This Court does not
have original equitable jurisdiction to decide, generally speaking, whether it
is fair or unfair to remove someone from Canada. This Court can only
intervene in defined circumstances by applying proper legal principles
which, in this case, place upon the applicants the burden of meeting the
tripartite test for granting stays. [Emphasis added].
IV. Analysis
A. Serious Issue
[22]
Ms. Jackson is in disagreement with the
PRRA officer’s appreciation of the facts and the evidence. Nevertheless, the
manner in which the PRRA officer weighed the facts, the risk, the relevant
H&C factors and the evidence is not sufficient for this Court to intervene
(Singh v
Canada (Minister of Citizenship and Immigration), 2008 FC 471 at para
4).
(1) Risks
of Return
[23]
The fact that Ms. Jackson disagrees with the PRRA officer’s
factual assessment and repeats her explanations that “there is a real fear for
her life and well-being … by her brother and from the boyfriend”, that were
dismissed, does not warrant this Court’s intervention. It is within the PRRA
officer’s jurisdiction to assess the probative value, the weight, the relevancy
or the sufficiency to be given to the documentary evidence before him.
[24]
It is trite law that the burden of proving a PRRA or H&C
claim for protection rested with Ms. Jackson.
[25]
Ms.
Jackson was required to show she would personally be at risk in
St-Vincent in order to sustain a finding of refugee protection (PPRA) or a
finding of unusual, undeserved or disproportionate hardship (H&C) (Maichibi
v
Canada (Minister of Citizenship and Immigration), 2008 FC 138 at
para 21).
[26]
The risks alleged by Ms. Jackson were the same as those that were
rejected by the RPD. Still, the PRRA officer relied on up-to-date
documentation. No new facts as to risks of return emerged for the purpose of
the PRRA analysis, and the evidence presented by Ms. Jackson in support of her
allegations of risk did not allow the PPRA officer to conclude differently from
the RPD.
[27]
The evidence submitted in support of her allegations of risk to
the PRRA officer was unquestionably deficient.
(2) Best
interest of the children
[28]
Ms. Jackson essentially argues that the
PRRA officer would have erred by not being “alert, alive, and sensitive” to the
interests of her Canadian-born children, who “are entitled to all the rights,
services, and benefits of a Canadian, particularly in the field of education
and health”.
[29]
Ms.
Jackson
also adds that “in this case, where the child is not able to finish his school
year or even the school semester, the Immigration Officer should have taken
this into consideration and delayed the deportation”.
[30]
Ms. Jackson cannot in a stay motion, attached to an underlying
application for leave and for judicial review of her H&C decision, which is
already “piggy-backed” by arguments against her PRRA decision, also attack in a
collateral way the refusal by a Removals officer to defer the execution of her
removal.
[31]
Aside from the fact that Ms. Jackson’s 5 year old child is
currently attending kindergarten in a “half day program” and the 3 year old
child is not yet of school age, the jurisprudence of this Court holds that
disruption or loss of schooling does not constitute irreparable harm and that
removal from school is “a routine, if painful, incident of removal” (Selliah
v
Canada (Minister of Citizenship and Immigration), 2004 FCA 261).
[32]
Contrary to Ms. Jackson’s assertions, in determining whether the
hardship flowing from having to leave Canada would be unusual or
disproportionate, it is clear that the H&C officer was “alert and sensitive”,
and “well identified and defined” the children’s best interests, pursuant to
the standards set out in Baker
v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 and Canada (Minister of Citizenship and Immigration) v Legault, 2002 FCA 125, [2002] 4 FC 358.
[33]
The Federal Court of Appeal has confirmed in Owusu v Canada
(Minister of Citizenship and Immigration), 2004 FCA 38, [2004] 2 FCR
635, that it was up to an applicant to submit convincing evidence relating to
the best interests of the children.
[34]
In this context, the H&C officer reasonably concluded that there was
insufficient evidence before him to demonstrate that the children would not be
able to adjust or would be in any risk if they followed their mother to her
country of citizenship.
[35]
As stated in Legault, above, foreign nationals cannot rely on the
existence of Canadian born children to delay or defeat the execution of their
lawful removal from Canada:
[12] … It is not because
the interests of the children favour the fact that a parent residing illegally
in Canada should remain in Canada (which, as justly stated by Justice Nadon,
will generally be the case), that the Minister must exercise his discretion
in favour of said parent. Parliament has not decided, as of yet, that the
presence of children in Canada constitutes in itself an impediment to any
"refoulement" of a parent illegally residing in Canada (see Langner
v. Minister of Employment and Immigration (1995), 184 N.R. 230 (F.C.A.),
leave to appeal refused, SCC 24740, August 17, 1995). [Emphasis added].
[36]
In these circumstances, the H&C officer did not ignore the interests
of the children and consequently committed no reviewable error in considering
their interests.
[37]
It is settled law that the PRRA officer did not have the jurisdiction to
consider H&C factors in the adjudication of Ms. Jackson’s PRRA application.
These factors were considered in the H&C assessment.
[38]
It is also noted that in the context of an H&C application, “risk
should be addressed as but one of the factors relevant to determining whether
the applicant would face unusual, and underserved or disproportionate hardship”
(Sahota v
Canada (Minister of Citizenship and Immigration), 2007 FC 651. It
is not determinative of an H&C application. The same is to be said of
the establishment/integration of an applicant in Canada as well as the best
interests of the children.
[39]
Considering that the PRRA officer’s determination and findings
pertaining to establishment/integration were not challenged by Ms. Jackson, they
are deemed to be admitted and correct.
[40]
In effect, Ms. Jackson is asking the Court to re-weigh the evidence
before the PRRA officer; however, the officer rendered his assessment with both
thorough consideration and reasons.
[41]
Accordingly, Ms. Jackson’s arguments do not serve to impugn neither the
H&C decision nor the PRRA decision.
B. Irreparable Harm
[42]
Ms. Jackson presents no specific arguments or evidence on the issue of
irreparable harm.
[43]
Ms. Jackson’s argument for the irreparable harm part of the tripartite
test set-out in Toth, above, would pertain to her allegations of risk
based on her fear of her brother and her ex-boyfriend, as well as the harm to
her children stemming from their resettlement in St-Vincent.
[44]
It is not enough for Ms. Jackson to allege in her written submissions
that she or her children will suffer irreparable harm without further
demonstration or evidence.
[45]
“Irreparable harm” must not be speculative nor can it be based on a
series of possibilities, and, therefore, the production of non-speculative,
objective, evidence as to irreparable harm is required (Atakora v Canada
(Minister of Employment and Immigration) 1993, 68 FTR 122). Such
evidence has not been adduced in the present case.
[46]
For the purposes of a stay of removal, “irreparable harm” is a very
strict test. It implies the serious likelihood of jeopardy to an applicant's
life or safety. It must be more than unfortunate hardship, including breakup or
dislocation of family:
[21] … 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…
(Melo v Canada (Minister of
Citizenship and Immigration) (2000), 188 FTR 39).
[47]
The risks invoked by Ms. Jackson in her motion are based on the same
alleged incidents and narrative that were deemed not to be founded by the RPD,
the PRRA assessment and the H&C assessment. It is trite law that
allegations of risk that were found insufficient to ground a claim for
protection cannot serve as the basis for the establishment of “irreparable
harm” in a stay application. In Singh v Canada (Minister of
Citizenship and Immigration), 2005 FC 145, Justice Yves de Montigny
stated:
[14] Turning now to the
irreparable harm requirement, the applicant has failed to demonstrate that he
is really at risk if he should be removed to India. As held by this Court in
a number of cases, when the applicant's account has been found not to be
credible both by the Refugee Division and a PRRA officer, this same account
cannot serve as a basis for an argument supporting irreparable harm in a stay
application: Akyol v. Canada (Minister of Citizenship and Immigration),
[2003] F.C.J. No. 1182; Saibu v. Canada (Minister of Citizenship and
Immigration), [2002] F.C.J. No. 151; Hussain v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 751; Ahmed v. Canada
(Minister of Citizenship and Immigration), [2001] 1 F.C. 483 (T.D.).
[Emphasis added].
[48]
The irreparable harm alleged by Ms. Jackson concerns the “usual
consequences of deportation” which the Court of Appeal specifically rejected as
insufficient to meet the test for irreparable harm (Atwal v Canada
(Minister of Citizenship and Immigration), 2004 FCA 427).
[49]
In light of Ms. Jackson’s personal circumstances and the lack of
personalized evidence, any allegation of irreparable harm is pure
speculation.
C. Balance of Convenience
[50]
Ms. Jackson does not have the right to remain in Canada as she has not
demonstrated that the balance of convenience favours the non-application of the
law.
[51]
The Respondent has a statutory duty to execute removals as soon as is
practicable (section 48 of the IRPA). In a case such as this, where an
applicant has not demonstrated that a serious issue and irreparable harm exists,
the balance of convenience undoubtedly favours the Respondent.
[52]
There is a public interest in enforcing removal orders in an efficient,
expeditious and fair manner and in supporting the efforts of those responsible
for doing so. Only in exceptional cases will a person’s interest outweigh the
public interest (Aquila v Canada (Minister of Citizenship and
Immigration), [2000] FCJ No 36 (QL/Lexis) (TD); Kerrutt v Canada (Minister
of Employment and Immigration) (1992), 53 FTR 93 (TD); Dugonitsch
v
Canada (Minister of Employment and Immigration) (1993), 53 FTR 314 (TD)).
[53]
The fact that the person seeking a stay order has had the benefit of a
series of procedures within the immigration system can also be taken into
account in deciding that the balance of convenience favours the execution of
the law by the Minister (Selliah, above).
[54]
Ms. Jackson has had her allegations of risk analyzed three times (RPD,
PRRA, H&C); and, it has been found that no protection is warranted, nor is
there an undue hardship based on risk or any other ground in evidence.
[55]
The fact that the person seeking a stay order has no criminal record, is
not a security concern and is financially established and socially integrated
in Canada does not mean that the balance of convenience favours granting a stay
order. In dismissing the motion for a stay in Selliah, above, the
Federal Court of Appeal stated:
[21] Counsel says that since the
appellants have no criminal record, are not security concerns, and are
financially established and socially integrated in Canada, the balance of
convenience favours maintaining the status quo until their appeal is decided.
[22] I do not agree. They
have had three negative administrative decisions, which have all been upheld by
the Federal Court. It is nearly four years since they first arrived here. In my
view, the balance of convenience does not favour delaying further the discharge
of either their duty, as persons subject to an enforceable removal order, to
leave Canada immediately, or the Minister's duty to remove them as soon as
reasonably practicable … This is not simply a question of administrative
convenience, but implicates the integrity and fairness of, and public
confidence in, Canada's system of immigration control. [Emphasis added].
[56]
It cannot be said that Ms. Jackson established herself in Canada more
than any other refugee who is given similar opportunities in Canada while
undergoing the refugee determination process, she spent considerable time in
Canada (since 2002), living here illegally and in defiance of Canadian
immigrations laws.
[57]
As noted by Justice Pierre Blais, in Lee v Canada
(Minister of Citizenship and Immigration), 2005 FC 413:
[9] In my view, the
officer did not err in determining that the time spent in Canada and the
establishment in the community of the applicants were important factors, but
not determinative ones. If the length of stay in Canada was to become the main
criterion in evaluating a claim based on H & C grounds, it would encourage
gambling on refugee claims in the belief that if someone can stay in Canada
long enough to demonstrate that they are the kind of persons Canada wants, they
will be allowed to stay. (Irimie v. Canada (Minister of Citizenship and
Immigration), [2000] F.C.J. No. 1906).
[58]
Ms. Jackson’s establishment was not due to circumstances beyond her
control. It would defeat the purpose of the IRPA, if the longer an
applicant was to live illegally in Canada, the better his/her chances to stay,
even though he/she would not otherwise qualify as a refugee or permanent
resident. A failed refugee claimant is entitled to use all the legal remedies
at their disposal, but must do so knowing full well that removal will be more
painful if it eventually occurs and even though she considers Canada, a better
place to live than St-Vincent and the Grenadines, this is not determinative on
an H&C application and does not reflect Parliament's intent in enacting section
25 of the IRPA (Serda v Canada (Minister of Citizenship and
Immigration), 2006 FC 356 at para 21, 23 & 31).
[59]
Lastly, the deportation of individuals while they have outstanding leave
applications and/or other litigation before the Court does not constitute a
serious issue or irreparable harm. Ms. Jackson may conduct her litigation
from outside Canada. There is no evidence of an adverse impact of the
deportation on the application for leave and, if granted, the judicial review.
Removal does not adversely affect rights on a leave application or
automatically render the leave application moot (Akyol v Canada
(Minister of Citizenship and Immigration), 2003 FC 931 at para 11).
[60]
Ms. Jackson has come to the end of her immigration process. The balance
of convenience clearly favours the Minister.
V. Conclusion
[61]
For all of the above-mentioned reasons, the Applicant’s stay application
is denied.
JUDGMENT
THIS COURT
ORDERS that the Applicant’s motion to
stay the execution of the removal order be denied.
“Michel M.J. Shore”
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