Docket: IMM-7299-11
Citation: 2011 FC 1380
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, November 29, 2011
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
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JOSEPH GOSHEN
ANAIT GOSHEN
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Applicants
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and
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THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
AND
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondents
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Preliminary
[1]
The
applicants, who
came to Canada four years ago, have exhausted all of the recourses available to
remain in the country: a refugee claim to the Refugee Protection Division (RPD),
a pre‑removal risk assessment (PRRA) application and an application made
on humanitarian and compassionate (H&C) grounds. These applications were
all refused because they did not establish the existence of a fear in their
country of origin, Israel.
[2]
With
respect to this stay motion, the applicants have failed to establish the
existence of a serious issue with respect to the officer’s decision to refuse
their H&C application.
[3]
As the
reasons in the decision on the H&C application indicate, the same fears were
assessed by the RPD and it had found that the applicants were not credible. Furthermore,
the same fear was reiterated in the PRRA application.
[4]
The
Federal Court dismissed the application for leave and judicial review (ALJR) of
the RPD’s decision and the applicants do not seem to have applied for judicial
review of the PRRA decision.
[5]
In their written
submissions in support of this motion, the applicants reiterate the same risks
and fears.
[6]
It is well settled
that the risks alleged before the RPD, the PRRA officer and the H&C officer
were all found to be unsatisfactory and cannot constitute irreparable harm.
This Court recently pointed this out in Eid
v
Canada (Minister of Citizenship and Immigration), 2010 FC 639:
[85]
It is well settled that risk allegations that have already been assessed and
determined to be unfounded cannot constitute irreparable harm for the purposes
of a stay motion. The same narrative proposed to this Court, with no supporting
evidence whatsoever, cannot show irreparable harm:
[42] The remarks of this Court in
this regard 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. [Emphasis in original.]
(Also, Jozsefne v Canada (Minister of Public
Safety and Emergency Preparedness), 2008 FC 1411, 348 FTR 233; Malagon v
Canada (Minister of
Citizenship and Immigration), 2008 FC 1068 at paragraph 56; Tchoumbou v
Canada (Minister of Public Safety and Emergency Preparedness), 2008 FC 1399
at paragraphs 1 and 45.)
[7]
According to the stay
motion record, each decision from each decision-maker submitted into evidence
rejected the applicants’ allegations of a risk to their lives or safety if they
were to return to Israel.
II. Introduction
[8]
The applicants are submitting
a motion for a stay of the removal order scheduled for December 12, 2011.
[9]
This motion is
incidental to an ALJR refusing the applicants an exemption on H&C grounds from
the requirement to obtain a permanent resident visa outside of Canada, dated
October 4, 2011.
III. Preliminary comment: amendment to the style of cause
[10]
The applicants
brought their proceeding only against the “Minister of Citizenship and
Immigration”. Because the “Minister of Public Safety and Emergency Preparedness”
is the Minister responsible for the execution of removal orders, he should also be named as a
respondent. For this reason,
the style of cause in this case must be amended to add the Minister of Public
Safety and Emergency Preparedness as a respondent, along with the Minister of
Citizenship and Immigration.
IV. Facts
[11]
The applicants,
Joseph Goshen and Anait Goshen, are a couple. She is 52 years old and he is 61 years old. They
are Israeli citizens and their families,
including three children, are still in Israel.
[11]
[12]
Four
years ago, more specifically on December 13, 2007, the applicants arrived in
Canada and claimed refugee protection. They based their refugee claim on their fear
of persecution by the Israeli police because of their friendship with an Arab
family and their refusal to become collaborators. They also alleged that they were victims
of racism because they are not considered to be Jews and fear mistreatment
because of the male applicant’s Iranian origins.
[13]
On July 26, 2010, the
RPD rejected the applicants’ refugee claim on the ground that their account
lacked credibility. To
support that argument, the RPD identified several omissions, inconsistencies
and implausibilities in the evidence submitted.
[14]
On November 25,
2010, the Federal Court dismissed the ALJR submitted by the applicants against
the RPD’s decision.
[15]
On January
20, 2011, the applicants submitted their H&C application.
[16]
On
April 7, 2011, the applicants submitted a PRRA application.
[17]
On July 5, 2011, their
PRRA application was rejected. The applicants do not seem to have submitted an
application against the PRRA decision.
[18]
On
October 4, 2011, the applicants’ H&C application was refused.
[19]
On October
20, 2011, the applicants filed an ALJR against the H&C decision. That ALJR
is incidental to this motion.
[20]
On November 10, 2011,
the applicants were interviewed by an enforcement officer. During the
interview, they were informed that they had to leave Canada. The applicants
stated that they were ready to leave but that they did not have the means to
pay for their plane tickets. The officer therefore issued plane tickets for a December
12, 2011 departure with Royal Jordanian.
[21]
However, on
November 16, 2011, the applicants appeared at the removal officer’s office to
inquire as to whether they could buy their own plane tickets. This request was
accepted.
[22]
On November 21,
2011, the applicants appeared at the removal officer’s office with plane
tickets for a December 11, 2011 departure with Air Canada. This itinerary was accepted by the removal
officer.
[23]
On
November 23, 2011, the applicants served on the respondent and submitted to the
registry of this Court this stay motion, which is accompanied by the ALJR of
the H&C decision and which seeks the stay of their removal scheduled for
December 12, 2011.
[24]
Therefore, the
applicants, who have been in Canada for four years, have exhausted all of the
recourses available to remain in the country: a RPD refugee claim, a PRRA
application and an H&C application. These applications were all refused
because they did not establish the existence of a fear in their country of
origin, Israel.
[25]
Furthermore, the
applicants told the removal officer that they were ready to leave and even
bought their plane tickets for a December 11, 2011 departure.
V. Issue
[26]
In its assessment of
the merits of this stay motion, the Federal Court must determine whether the
applicants satisfied the three jurisprudential criteria established by the
Federal Court of Appeal in Toth v Canada (Minister of Employment and Immigration) (1988), 86 NR 302
(FCA), which are the
following:
a. the existence of a serious issue to be
tried in the underlying proceeding;
b.
the existence of irreparable harm if the stay is not granted; and,
c. that the balance of convenience favours them.
[27]
Because it
is a conjunctive test, the applicants’ failure to establish only one of
these three criteria will result in the dismissal of the stay motion (Jaziri
v
Canada (Minister of Citizenship and Immigration), 2007 FC 1086 at paragraph
3; Cardoza Quinteros v Canada (Minister of Citizenship and Immigration),
2009 FC 11 at paragraph 36).
VI. Analysis
[28]
The
Court agrees with the respondents that none of the criteria in the Toth test
were satisfied.
A. Serious issue
[29]
None
of the issues raised by the applicants in their submissions constitutes a
serious issue with respect to the officer’s decision to refuse their H&C
application.
(1) Statutory framework
[30]
It is a fundamental
principle that people who wish to obtain permanent resident status in Canada
must apply abroad. This is clearly stated in subsection 11(1) of the Immigration and Refugee
Protection Act,
SC 2001, c 27 (IRPA). Section
6 of the Immigration and Refugee Protection Regulations, SOR/2002-227, repeats
this requirement.
[31]
However, subsection
25(1) of the IRPA states that the Minister has the discretionary authority to exempt
a foreign national from any applicable criteria or obligations of the IRPA and
grant the foreign national permanent resident status if the Minister is of the
opinion that it is justified by humanitarian and compassionate considerations
relating to the foreign national. This is clearly meant to be a discretionary
exemption (Paz v Canada (Minister of Citizenship and Immigration), 2009 FC 412 at paragraphs
12, 15 and 17; Singh v Canada (Minister of Citizenship and Immigration),
2009 FC 11, 340 FTR 29 at paragraphs 1, 14 and 17).
[32]
To obtain this
exemption, the applicants had the burden of demonstrating that the
hardship they would face if they had to file their application for permanent residence
outside of Canada would be unusual and undeserved or disproportionate (Paz,
above, at paragraph 15; Jakhu v Canada (Minister of Citizenship and Immigration), 2009 FC 159; Singh,
above, at paragraph 18; Baker v Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817). The applicants were not entitled to a specific result. To
successfully challenge the H&C decision, they must demonstrate that the
officer committed an error of law, acted in bad faith or applied the wrong
principle.
[33]
The weighing of
these factors remains the responsibility of those officers. This Court must confirm the decision
even if it would have assessed the factors differently. Even if it would have come to another
conclusion, this Court must confirm the decision if the officer considered the
relevant factors and complied with the limits imposed by the applicable
criteria and procedures (Canada (Minister of Citizenship and Immigration) v Legault, 2002 FCA
125, [2002] 4 FC 358 at paragraph 11; Suresh v Canada (Minister of Citizenship
and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 at paragraphs
34-37; Kisana v Canada (Minister of Citizenship and Immigration), 2008 FC 307,
[2010] 1 FCR 360 at paragraph 26, aff’d. 2009 FCA 189).
[34]
No one factor
taken into consideration by an immigration officer in examining an H&C
application is determinative (Legault, above; Kawtharani v Canada (Minister of Citizenship
and Immigration), 2006 FC 162 at paragraph 20).
(2) H&C grounds submitted
by the applicants
[35]
In support
of their H&C application, the applicants argued their degree of
establishment in Canada and a risk of return to Israel.
[36]
A plain
reading of the reasons for the decision by the officer demonstrates that the
officer considered and analyzed all of the allegations and evidence submitted
by the applicants.
(3) Assessment
of the risks of return
[37]
For their
H&C application, the applicants submitted the same fears and risks of
return as those submitted before the RPD and in their PRRA application, namely
the following: 1) fear of persecution by the Israeli police based on their
refusal to become collaborators and their friendship with an Arab family; 2) fear
of being victims of racism because they are not considered Jewish; and, 3) fear
of mistreatment because of the male applicant’s Iranian origins.
[38]
In their written
submissions in support of this motion, the applicants reiterate, once again,
the same risks and fears.
[39]
As indicated in the
reasons for the H&C decision, those fears were assessed by the RPD and it
determined that the applicants were not credible. Moreover, the same fear was reiterated in
the PRRA application.
[40]
However, the
Federal Court dismissed the ALJR of the RPD’s decision and the applicants do
not seem to have applied for judicial review of the PRRA decision.
[41]
Furthermore, the
officer conducted her own review of the allegations of fear with respect to the
evidence submitted. The H&C officer noted the following:
[translation]
Regarding
the male applicant’s surname, I note that it is Goshen, not Mansour. The male
applicant stated in his PIF, which was submitted for his refugee protection
claim, that he and his family had changed their name to Goshen in 1992. I
note that the male applicant’s surname is Goshen on his identity documents,
that is, his marriage certificate, passport and record of civil status. The male applicant is listed
as Jewish on his marriage certificate and record
of civil status. The
male applicant also speaks Hebrew and served in the army. The documentary
evidence states that one must be Jewish to serve in the military. Considering these
elements, I find, on a balance of probabilities, that the applicant is
recognized as Jewish in Israel and that his surname has been established as Goshen.
In conclusion, the male
applicant did not adequately establish that his Iranian origins and surname caused
him problems.
[42]
These
findings are reasonable and based on the evidence submitted. Consequently, the
applicants failed to demonstrate the existence of a risk of return for their
country of origin, Israel.
(4) Degree of establishment
in Canada
[43]
The
applicants left their country of origin in December 2007, that is, barely four
years ago. The
H&C officer noted that the applicants:
- are 52 and 62 years old
and have spent most of their lives in Israel;
- have members
of their respective families in that country and have no family in Canada;
- speak several languages,
including Hebrew;
- both held
several jobs in Israel. Furthermore, the male applicant served in the military
and is entitled to a pension. The female applicant, a citizen of Israel, will
be entitled to a pension at retirement. Consequently, the applicants would be
able to support themselves in Israel.
[44]
The
H&C officer also noted
that the documents submitted by the applicants demonstrated a certain degree
of establishment in Canada. The officer noted that the applicants:
- demonstrated
a certain degree of integration;
- had taken
English and French classes. They had made an effort to learn Canada’s two
official languages;
- had each
held a job in Canada. The
applicants had been unemployed for their first two years in Canada;
- had developed
friendships in Canada.
[45]
In light
of all of the evidence submitted before her, the H&C officer found that
the factor of the applicants’ establishment in Canada was insufficient for
granting an exemption. In fact, the officer found that the applicants had failed
to demonstrate that their ties in Canada were significant enough for their
departure from the country to constitute a disproportionate hardship.
[46]
The
applicants’ integration was the result of personal choices they made despite
their uncertain immigration situation in Canada.
[47]
The officer was
correct in finding that the applicants had not submitted evidence allowing her
to find that they would face unusual and undeserved or disproportionate
hardship by filing their application for permanent residence outside Canada.
[48]
This decision
is reasonable. The fact that
the officer did not come to the result the applicants expected does not mean
that she erred.
[49]
Furthermore, the
officer’s findings are in line with the jurisprudence of this Court holding that
an applicant’s establishment is only one of many factors an officer must
consider when making a decision. This is not a determinative factor in itself. In other words, establishment does not
mean that there are automatically sufficient H&C grounds to allow the
application. The officer
must do a complete assessment of all of the relevant factors before making a decision
(Tarayao v
Canada (Minister of Citizenship and Immigration), 2008 FC 350 at paragraph 16; Buio v Canada (Minister of
Citizenship and Immigration), 2007 FC 157 at paragraph 37; Souici v
Canada (Minister of Citizenship and Immigration), 2007 FC 66, 308 FTR 111 at
paragraph 37).
[50]
An H&C
application is an exception to the general rule in Canada that an application
for permanent residence must be made abroad. The H&C process is designed to provide relief from
unusual, undeserved or disproportionate hardship, and the degree of
establishment is only one of many factors to consider when assessing such an
application.
[51]
The
test is not whether the applicants would be, or are, a welcome addition to the
Canadian community,
but rather whether a particular situation exists in their country of origin and
whether removal may cause undue hardship:
[20] The test to be applied by an
immigration officer when reaching a decision under section 25 of the IRPA is to
determine whether the person who requests an exception would suffer unusual,
undeserved or disproportionate hardship if he were to follow the normal
requirements of the Act. In Irimie v. Canada (Minister of Citizenship and
Immigration) (2000), 10 Imm. L.R. (3d) 206, [2000] F.C.J. No. 1906 (QL), it
is stated:
[26] I return to my observation that
the evidence suggests that the applicants would be a welcome addition to the
Canadian community. Unfortunately, that is not the test. To make it the
test is to make the H & C process an ex post facto screening device
which supplants the screening process contained in the Immigration Act and Regulations.
This 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. The H & C process is not
designed to eliminate hardship; it is designed to provide relief from unusual,
undeserved or disproportionate hardship. . . .
[21] The Immigration Officer applied
the right test and her assessment of the evidence was reasonable. [Emphasis added.]
(Lynch v Canada (Minister of Citizenship and Immigration),
2009 FC 615; also, Sharma v Canada (Minister of Citizenship and Immigration),
2009 FC 1006 at paragraphs 23-27; Singh, above, at paragraph 51; Mooker
v Canada (Minister of Citizenship and Immigration), 2008 FC 518 at paragraph
35; Zambrano v Canada (Minister of Citizenship and Immigration), 2008 FC
481, 326 FTR 174 at paragraph 74-75.)
[52]
Even if a person is
or may be a model in Canadian society, this has little relevance in the
examination of an H&C application:
[34] . . . Simply being employed
in Canada and acting as a responsible citizen is not sufficient, and other
factors must be present justifying humanitarian and compassionate grounds. . .
. [Emphasis added.]
(Adams v Canada (Minister of Citizenship
and Immigration), 2009 FC 1193; also, Jozsefne, above, at paragraphs
23-24; Diallo v Canada (Minister of Citizenship and Immigration), 2007 FC
1062 at paragraph 32; Jakhu, above, at paragraph 29.)
[53]
In this
case, the H&C decision is reasonable and based on the evidence submitted
before the officer. The applicants are not challenging the facts and
evidence on which the officer relied to make her decision.
[54]
In fact, the
applicants show no error in the officer’s reasons. In challenging the H&C decision, the
applicants argue that their integration in Canada and their alleged risk of
return warrant the granting of their H&C application. The applicants are simply substituting
their opinion for that of the officer, which is clearly insufficient to
demonstrate a serious issue.
[55]
Essentially, the
applicants are asking this Court to reassess all of the evidence. As this Court
has pointed out, assessment of the evidence is within the discretion of the
H&C officer, who is a person with expertise, and it is not the Court’s
function to reassess facts which were put before the officer:
[27] In fact, Mr. Diallo is
essentially asking this Court to reassess all the evidence and to make a
different decision.
[28] However, it is not the
Court’s function to reassess facts which were put before the officer (Legault
v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125, [2002]
F.C.J. No. 457 (QL), para. 11; Lim v. Canada (Minister of Citizenship and
Immigration), 2002 FCTD 956, [2002] F.C.J. No. 1250 (QL), para. 20).
[29] It appeared from the H&C
decision that the PRRA officer reviewed all the evidence submitted by Mr.
Diallo in support of his H&C application.
[30] It was entirely a matter for
the officer, not the applicant, to decide on the weight to be given to each of
the various points submitted by the applicant, based on the evidence before
him. Mere disagreement as to the weight given to the various points submitted
is not sufficient to warrant this Court’s intervention.
[31] The officer’s conclusions were
reasonable and were based on the evidence. Assessment of the evidence is
within the discretion of the officer, who is a person with expertise. [Emphasis
added.]
(Diallo, above.)
[56]
In light
of the foregoing, the applicants did not discharge their burden of establishing
the existence of a serious issue to be tried in the context of their ALJR of
the H&C decision.
[57]
Therefore, this stay
motion should be dismissed.
B. Irreparable
harm
[58]
It
is important to emphasize that a negative PRRA decision was rendered with
respect to the applicants a few months ago, that is, in July 2011. The PRRA officer found that
there was no risk of persecution or threat to the lives of the applicants if
they were to return to Israel. This
decision does not seem to have been challenged by the applicants.
[59]
Regarding
irreparable harm, the applicants simply reiterated the same allegations that
they raised in their H&C application, namely the following: a risk of return
as well as the loss of their jobs and social network.
[60]
The risks indicated
by the applicants consist of the same facts and risks that were submitted to
the RPD. These same facts were also reviewed by the Federal Court, which
dismissed the ALJR of the RPD’s decision.
[61]
According to the stay
motion record, each decision from each decision-maker submitted into evidence rejected
the applicants’ allegations of a risk to their lives or safety if they were to
return to Israel.
[62]
It is well settled
that the risks alleged before the RPD, the PRRA officer and the H&C officer
were all found to be unsatisfactory and cannot constitute irreparable harm.
This Court recently pointed this out in Eid, above:
[85] It is well settled that risk allegations that have already
been assessed and determined to be unfounded cannot constitute irreparable harm
for the purposes of a stay motion. The same narrative proposed to this Court,
with no supporting evidence whatsoever, cannot show irreparable harm
[42] The remarks of this Court in
this regard 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. [Emphasis
in original.]
(Also, Jozsefne, above; Malagon, above;
Tchoumbou, above.)
[63]
Considering that the
applicants are not submitting any new elements with respect to their fear of
return, there is an obvious absence of irreparable harm.
[64]
Moreover,
jurisprudence has repeatedly recognized that alleged harm must be more than the
usual consequences of deportation:
[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. . . . [Emphasis added.]
(Thanabalasingham v Canada (Minister of Public
Safety and Emergency Preparedness), 2006 FC 486; also, Thirunavukkarasu v
Canada (Minister of Citizenship and Immigration), 2003 FC 1075; Atwal v
Canada (Minister of Citizenship and Immigration), 2004 FCA 427.)
[65]
In this case, the
applicants submitted no evidence of harm other than the inherent consequences of
removal of a person who does not have legal status in Canada. Loss of
employment and/or separation from friends are unfortunate, but they are simply inherent
consequences of their removal.
[66]
Contrary to the
applicants’ submissions, the simple fact that an ALJR is pending is not an
obstacle to the enforcement of a valid removal order. The processing of their
ALJR will continue regardless of where the applicants are (El Ouardi v
Canada (Solicitor General), 2005 FCA 42; Akyol v Canada (Minister of
Citizenship and Immigration), 2003 FC 931; Silverio v Canada (Minister of
Citizenship and Immigration), 2011 FC 295 at paragraph 15).
[67]
In this case, it is
clear that the applicants’ allegations do not constitute irreparable harm.
C. Balance of convenience
[68]
Under the
circumstances, it is obvious that the balance of convenience favours the
respondents in that the applicants had not established the existence of a
serious issue or irreparable harm.
[69]
Subsection
48(2) of the IRPA imposes the obligation to enforce a removal order as soon as is
reasonably practicable.
[70]
The Federal Court of
Appeal has confirmed that, when assessing the balance of convenience, the
notion of public interest must be taken into account. Moreover, it has confirmed
that the fact that an applicant has availed himself or herself of several
recourses since his or her arrival in Canada, all of which were unfavourable, may
be considered in the assessment of the balance of convenience:
(iii) Balance of convenience
[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: IRPA, subsection 48(2). 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.]
[71]
In this
case, the applicants were able to exhaust all of the recourses available to
them under the IRPA.
[72]
The
balance of convenience therefore favours the respondents.
VII. Conclusion
[73]
In
light of the foregoing, the applicants do not meet the jurisprudential
requirements for obtaining a judicial stay.
JUDGMENT
THE COURT
ORDERS the
dismissal of the motion for a stay of removal.
“Michel
M.J. Shore”
Certified true
translation
Janine Anderson,
Translator
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