Date: 20081223
Docket: IMM-5214-08
Citation:
2008 FC 1410
Ottawa, Ontario, the 23rd day of December 2008
Present:
The Honourable Mr. Justice Shore
BETWEEN:
JOZSEF KAKONYI
JOZSEFNE KAKONYI
KARMEN KAKONYI
CINTIA KAKONYI
DZENIFER KAKONYI
Applicants
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY
PREPAREDNESS
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondents
REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
With
regard to a stay in an immigration matter, interpretation of the spirit of the Toth
test rests on the fact that this test is tripartite and conjunctive. In order
for a case to pass the three parts of the Toth test, a number of
interconnected factors must be present.
A stay in an
immigration matter confers a privilege, as much as a right, arising from a
number of interconnected factors having to do not only with what the person is
or represents in that person’s situation, that is, the person’s experience, but
also with the person’s actions and behaviour with regard to Canadian values, as
described in the objectives set out in the introduction to the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA).
The Toth
test is applied by means of a preliminary assessment; in fact the entire
assessment process in the Toth test is a preliminary stage for, or for
subsequent consideration of, a possible review of proceedings setting aside
conclusions reached by authorities in the first instance.
In each case,
assessment of the responses to the parts of the Toth test provides a summary
outline of the person’s past history and, to the extent possible, a
brief judicial overview weighing the person’s possible future chances at
subsequent stages in light of that person’s circumstances.
(Toth v. Canada (Minister of
Employment and Immigration) (1988), 86 N.R. 302,
11 A.C.W.S. (3d) 440 (F.C.A.))
II. Judicial Proceedings
[2]
This
is a motion for a stay of the order for the
removal of the applicants to Hungary scheduled for January 29, 2009. The stay
motion was made together with an application for leave and for judicial review
(ALJR) of the decision of an officer made on July 24, 2008, rejecting their
pre-removal risk assessment (PRRA) application.
III. Amendment to the Style of Cause
[3]
The
respondents note that the applicants commenced their proceeding against only
the “Minister of Citizenship and Immigration”. Because the “Minister of Public
Safety and Emergency Preparedness” is the Minister responsible for enforcing
removal orders, he should have been named as a respondent as well (Department
of Public Safety and Emergency Preparedness Act, S.C. 2005, c. 10 and
Order in Council made on April 4, 2005 (P.C. 2005-0482).
[4]
Accordingly,
the style of cause in this case is amended to add the Minister
of Public Safety and Emergency Preparedness as a respondent in addition to the
Minister of Citizenship and Immigration.
IV. Facts
[5]
The
principal applicant, Jozsef Kakonyi, his wife, Jozsefne Kakonyi, and their
three daughters, Cintia, Karmen and Dzenifer, are citizens of Hungary.
[6]
The
applicants arrived in Canada on November 6, 2001, and claimed
refugee status.
[7]
On
June
20, 2003, the Refugee Protection Division (RPD) denied the claimants
refugee status.
[8]
They
allege that they have a well-founded fear of persecution and that they are
persons in need of protection because the principal applicant is Rom and
members of that minority group in Hungary are victims of violence and racial
crime. The wife and daughters allege that they have a well-founded fear of
persecution based on their membership in the family’s social group.
[9]
The
RPD concluded that the applicants were not credible and had failed to
establish, by clear and convincing evidence, that the Hungarian state was
unable to protect them. They therefore did not have a well-founded fear of
persecution if they were to return to their country.
[10]
On November 12, 2003, the Federal Court dismissed
the application for leave and judicial review of the decision of the RPD.
[11]
On May
27, 2005, the principal applicant pleaded guilty to 20 charges arising out
of his involvement in a credit card fraud scheme. On September 21, 2007,
he was given a conditional discharge with 18 months’ probation.
[12]
On
December 6, 2006, the applicants filed an application for a permanent resident
visa exemption on humanitarian and compassionate grounds (H&C).
[13]
On June 9, 2008, the applicants were advised
regarding the risk assessment review.
[14]
On June 16, 2008, the applicants filed their
PRRA application, with representations and evidence.
[15]
On July 24, 2008, the PRRA application was
rejected.
That decision is the subject of these proceedings. The reasons for the decision
were delivered to the applicants on November 25, 2008.
[16]
On July 27, 2007, the H&C application was
rejected.
[17]
On November 4, 2008, the Federal Court dismissed
the application for leave and for judicial review of the H&C decision.
[18]
On November 25, 2008, the applicants applied for
an administrative stay of removal. On December 11, 2008, the removals officer
refused to postpone the departure date and informed the applicants that they would
have to leave on the date scheduled, January 29, 2009.
V. Analysis
[19]
The
applicants do not meet any of the three tests for obtaining a judicial stay as
stated by the Federal Court of Appeal in Toth:
a. a serious issue to be tried;
b. irreparable harm; and
c. the balance of convenience.
A. Serious Issue
[20]
The
applicants have not established that there is a serious issue to be tried by
this Court.
[21]
Merely
reading the detailed reasons of the PRRA officer shows that her conclusion may
reasonably be inferred from the evidence and that she had regard to all of the
evidence before her.
[22]
The
applicants have simply argued, generally, that the officer erred in her
conclusion concerning the situation in Hungary. In a nutshell, they are asking that
this Court substitute its own opinion for the officer’s regarding the
sufficiency of the allegations and the evidence they submitted in support of
their PRRA application (Figurado v. Canada
(Solicitor General), 2004 FC 241, 129 A.C.W.S. (3d) 374 at paragraphs. 6
and 7).
[23]
The PRRA
officer did a detailed analysis of the applicants’ personal situation, having
regard to the objective, recent documentary evidence obtained from reliable
sources, dealing with the current situation in Hungary.
[24]
It is
clear from the reasons for the PRRA decision that the applicants submitted
numerous documents relating to their activities in Canada, as well as documents
concerning the situation of the Roma in Hungary. Those documents were duly
considered by the officer.
[25]
The
officer appropriately evaluated the evidence submitted by the applicants and
determined which evidence met the requirements of paragraph 113(a) of
the IRPA. Only the documents dealing with the situation of the Roma in Hungary
and the “psychological” report by David L.B. Woodbury, a member of the Ordre
professionnel des conseillers et conseillères d'orientation et des
psychoéducateurs et psychoéducatrices du Québec, were considered, as being
related to the risks of return. The officer did a detailed analysis and
concluded that this new evidence was not conclusive regarding the risks alleged.
[26]
Having
regard to the new evidence submitted, it was reasonable and justified for the
officer to assign weight to the negative decision of the IRB concerning the
risk of return for the applicants and the availability of state protection,
since the facts and risks cited were the same.
[27]
Accordingly,
the officer had regard to all the evidence submitted by the applicants and did
her own analysis.
[28]
The
officer’s reasons are clear: the applicants had not met their burden of proof,
that is, of establishing that they would be personally at risk in
Hungary (Cupid
v.
Canada (Minister of Citizenship and Immigration), 2007 FC 176, 155
A.C.W.S. (3d) 396 at paragraph 16).
[29]
The
decisions of this Court and the Federal Court of Appeal are consistent. The
applicants must establish a personalized risk in the event of return:
[28] That said, the assessment of the applicant's potential risk
of being persecuted if he were sent back to his country must be individualized.
The fact that the documentary evidence shows that the human rights situation
in a country is problematic does not necessarily mean there is a risk to a
given individual (Ahmad v. M.C.I., [2004] F.C.J. No. 995 (F.C.); Gonulcan
v. M.C.I., [2004] F.C.J. No. 486 (F.C.); Rahim v. M.C.I., [2005]
F.C.J. No. 18 (F.C.)).
...
(Jarada v. Canada (Minister of
Citizenship and Immigration), 2005 FC 409, [2005] F.C.J. No. 506 (QL); see
also Rizkallah v. Canada (Minister of Employment
and Immigration) (1992), 156 N.R. 1, 33 A.C.W.S. (3d) 940 (F.C.A.);
Pillai v. Canada (Minister of Citizenship and Immigration), 2008 FC
1312, [2008] F.C.J. No. 506 (QL); Toure v. Canada
(Minister of Citizenship and Immigration), 2007
FC 479, 160 A.C.W.S. (3d) 333).
[30]
Although
the situation in Hungary for some Roma is difficult, that situation in itself
is not sufficient for a favourable determination to be made.
[31]
The
applicants had to establish a nexus between the current situation in their
country and their personal situation, and they did not do this. The officer’s
reasons are clear and detailed on this point.
[32]
The
officer therefore rejected the PRRA application, finding that there was no
evidence from which it could be concluded that there was more than a mere
possibility that the applicants would be persecuted and that there were no
serious reasons to believe that they would be subject to torture or to a risk
to their life or to cruel and unusual treatment or punishment (Cupid, supra).
[33]
The
PRRA officer’s decision is well founded in fact and in law, having regard to
the aim and objectives of the pre-removal risk assessment procedure.
Best
Interests of the Children
[34]
In their
submissions, under the heading [TRANSLATION] “serious issues”, the applicants
allege that the officer was [TRANSLATION] “insensitive to the best interests of
the three children educated in Canada”. In support of that allegation, they
essentially argue that she was insensitive to the facts that the daughters were
educated in Canada, that they do not know how to read and write Hungarian and
that they will be discriminated against and placed in special schools.
[35]
In doing her analysis of the
PRRA application, the officer did have to consider and analyze the risks
of return, both for the adults and for the three children, because they
are all affected by removal to Hungary.
[36]
Section 112
of the IRPA, which is in Division 3, dealing with the PRRA, provides that a
person in Canada, other than certain persons, may, in accordance with the
regulations, apply to the Minister for protection if they are subject to a
removal order. Applicants have the burden of showing that they are in need of
protection.
[37]
Humanitarian
and compassionate reasons, such as the fact that children’s schooling would be
interrupted and they would have better future prospects for education, do
not come under this definition. The decisions of this Court and the higher
courts are clear and consistent:
[13] Neither the Charter nor the Convention
on the Rights of the Child requires that the interests of affected children
be considered under every provision of IRPA: de Guzman v. Canada (Minister of
Citizenship and Immigration), [2006] 3 F.C.R. 655, 2005 FCA 436 at
para. 105. If a statutory scheme provides an effective opportunity for
considering the interests of any affected children, including those born
Canada, such as is provided by subsection 25(1), they do not also have to be
considered before the making of every decision which may adversely affect them.
Hence, it was an error for the Applications Judge to read into the statutory
provisions defining the scope of the PRRA officer’s task a duty also to
consider the interests of the adult respondents’ Canadian-born children. (Emphasis added.)
(Varga v. Canada (Minister of
Citizenship and Immigration), 2006 FCA 394, [2007] 4 F.C.T. 3).
[19] It is clear from Varga,
above, that a PRRA is not the place to assess the interests of children
affected by the deportation of their parents. The fact that this PRRA
Officer appears to have embarked upon such an exercise does not give rise to an
argument that the decision is vulnerable if that exercise was flawed.
Were it otherwise, the matter would be required to be remitted for
reconsideration on an issue falling outside of the proper scope of PRRA review,
leading to the pointless result that the reconsideration would proceed without
any assessment of the children’s interests. Regardless, it appears that
the PRRA Officer’s discussion about the children was primarily and properly
focused on the related risk implications and impediments facing the Applicants
if they returned home with two young foreign-born children.
(Zhou v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1129, 161 A.C.W.S. (3d) 626).
[38]
In this
case, the PRRA officer properly considered the children’s situation, in
accordance with the provisions of the IRPA regarding PRRA applications. The
officer even made a point of doing a detailed analysis of the risks of
return for the three daughters, under the heading [TRANSLATION]
“Special risks for the children” in her reasons (AR at p. 17).
[39]
The
officer considered the “psychological” report but assigned little weight to it,
because it is a personal opinion and because it does not necessarily demonstrate
the knowledge needed in order to draw conclusions regarding Hungary and the
situation of Roma children in that country. She assigned greater weight to the
independent documentary sources, which were recent and came from reliable
sources. She analyzed the daughters’ personal situation having regard to that
objective evidence.
[40]
The
conclusion reached by the PRRA officer is based on the evidence submitted and
is reasonable.
[41]
Essentially,
the applicants dispute the weight assigned by the officer to the report
submitted in support of their PRRA application.
[42]
As well,
an H&C application was made by the applicants; a negative decision was
made on July 27, 2008, in which the best interests of the children were
analyzed in depth, and that decision was affirmed by the Court on November 4,
2008. The applicants had also submitted the report in support of the
H&C application.
[43]
The
applicants have not established that there is a serious issue to be tried with
respect to the ALJR filed against the PRRA decision.
B. Irreparable
Harm
[44]
On the
question of irreparable harm, the applicants allege generally, relying on
somewhat outdated documentary evidence, that they would suffer irreparable harm
because they fear for their lives if they return to Hungary, because the principal
applicant is of Roma origin.
[45]
The
harm alleged by the applicants consists of the same facts and risks as were
presented before the RPD and in the H&C application, which risks were
not found to be credible or sufficient for their claim to be
allowed or the exemption granted. The same facts have also been reviewed by
the Federal Court on two occasions, when it dismissed the ALJR against the
decision of the RPD and the ALJR against the H&C decision.
[46]
The
PRRA officer also concluded, after doing her own analysis of the evidence
submitted to her, that the applicants had not established that they would be at
personal risk in Hungary.
[47]
It is
settled law that the risks alleged both before the RPD and before the PRRA
officer and determined to be unsatisfactory cannot constitute irreparable harm.
On this point, the Court refers to the following decisions: Bou
Jaoudeh v. M.C.I and M.P.S.E.P., IMM-4129-08,
IMM-4130-08, IMM-4269-08, (October 8, 2008, Pinard J.; Malagon v.
Canada (Minister of Citizenship and Immigration and Minister of Public Safety
and Emergency Preparedness), 2008 FC 1068, [2008] F.C.J. No. 1586 (QL); Doumbouya
v. M.C.I. and M.P.S.E.P., IMM-928-08 (February 20, 2008); Bizi-Bandoki
v. M.C.I.,
IMM-4261-07 (Yves de Montigny J.).
[48]
Regarding
the children, the applicants allege that they will suffer irreparable harm
because (1) the school year will be interrupted, and (2) they will have
too little time to prepare for their return to Hungary.
[49]
In support
of that allegation, the applicants submitted a document entitled [TRANSLATION]
“Psychological Report”, prepared by Mr. Woodbury, which is based both on
the facts reported by the applicants and on clinical observations.
[50]
Mr.
Woodbury is a guidance counsellor, not a psychologist. He therefore cannot
provide a psychological diagnosis: Rai v. Canada (Minister of
Citizenship and Immigration), 2008 FC 133; Singh v. Canada (Minister of
Citizenship and Immigration), 2001 FCTD 1376, 110 A.C.W.S. (3d) 1113).
[51]
Nonetheless,
even if the Court were to assign weight to Mr. Woodbury’s report, the report
merely states that in his opinion, the daughters’ behaviour is normal and
indicates no psychological problems.
[52]
The only
significant point in the report is as follows:
The children came to Canada at such an
early age that their identity is Canadian and have little (if anything) in
common with young people in Hungary. In my ten years of seeing families in
similar circumstances, I have never seen young people of this age group so
ill-prepared for removal. (They are more often terrified by stories of the
homeland than “protected,” and kept in ignorance of the realities.
(Emphasis added.) (AR at p. 40).
[53]
The
parents, the applicants in this case, are solely responsible for the fact that
their daughters are not prepared, particularly since they knew that their
status in Canada was precarious. The daughters arrived in Canada when they were
five and six years old, but they nonetheless speak Hungarian. Although they
have stayed here for several years, they will be accompanied by their two
parents and their grandmother when they return to Hungary. As well, they have
several members of their mother’s and father’s families living in Hungary.
Certainly they will have a period of adaptation, but they are young and they
will be surrounded by their family:
[TRANSLATION]
The Court is not insensitive to the fact that the applicant’s wife has just
given birth to their child. In the circumstances, the separation is certainly a
difficult situation. However, the courts have held that this is nonetheless a
normal consequence of a removal. The applicant knew that his status
in Canada was precarious, and he cannot now claim that the respondent created a
reasonable expectation simply because he did not carry out the removal sooner.
His wife’s sponsorship application must therefore take its normal course, as
was the case before this Policy was implemented. (Emphasis added.)
(Hazim
v. M.C.I., IMM-4390-07, October 29, 2007).
[54]
Contrary
to the applicants’ argument, the applicants’ emotional state as a result of
their departure from Canada cannot establish irreparable
harm. Stress, depression or anxiety is not considered by this Court to be
sufficient reason to grant a stay (Kandiah v. Canada (Solicitor
General), 2004 FC 322, 129 A.C.W.S. (3d) 568).
[55]
As well, the
irreparable harm must be established by clear and convincing evidence and must
be more than that which is inherent in removal (Selliah v.
Canada (Minister of Citizenship and Immigration), 2004 FCA 261, 132
A.C.W.S. (3d) at para. 13;
Radji v. Canada (Minister of Citizenship and
Immigration), 2007 FC 100, 308 F.T.R. 175 at
paras. 39-40).
[56]
In this
case, the applicants have not established, by clear and convincing evidence,
that the children would suffer irreparable harm as defined by the courts.
[57]
The interruption
in the school year does not constitute irreparable harm:
[4] The second ground argued by
counsel for the applicant is that his clients will suffer irreparable harm by
reason of the disruption of their education since the execution of the removal
order will take place before the end of their school year. Personal
difficulties of this nature, although inconvenient, do not, in my view,
constitute irreparable harm. In Chatterjee v. Canada (Minister of
Citizenship and Immigration), (16 August 1996), [(F.C.T.D.) (Ottawa:
IMM-2454-96)], Mr. Justice Richard (as he then was) states that personal
difficulties do not constitute irreparable harm ... . (Emphasis added.)
(Mahadeo v. Canada (Minister of
Citizenship and Immigration) (1999), 166 F.T.R. 315, 86 A.C.W.S. (3d) 773;
see also Radji, supra).
[58]
More
recently, in Chu v. MPSEP, IMM-4124-08, September 23, 2004, the Court, per
Montigny J., said:
The inherent
consequences of removal, including a child’s separation from school and
friends, do not constitute irreparable harm. Neither unpleasant
conditions in the country to which the applicant is scheduled to be removed,
nor the fact that Canada is a preferable place to live, constitutes irreparable
harm. (Emphasis added.)
[59]
As well,
in the H&C application, last July, the officer did a detailed and
satisfactory assessment of the impact on the daughters’ education if they were
to return to Hungary. She concluded as follows:
[TRANSLATION]
While the difficulty for the girls of leaving their friends and teachers should
not be minimized, and recognizing that they will be facing a period of
adjustment when they return to their country of nationality, having considered
the situation of Roma children in Hungary in light of their personal family
circumstances as set out above, it is my opinion that their situation differs
significantly from the situation for a large majority of Roma children, and I
believe that the best interests of Cintia, Karmen and Dzenifer will not be
jeopardized if they return to Hungary.
In this case,
the three girls’ mother tongue is Hungarian, and if we rely on the information
provided, their mother is Hungarian and their maternal grandparents and an aunt
live in Hungary. I also note that they speak and write French and have some
knowledge of English as well. While they have been in Canada for a little over
six years, Karmen, Cintia and Dzenifer are only 13 and 11 years old, and have
only completed grade six in elementary school, in the case of the twins, and
grade four, for the youngest girl. I would note that if they return to their
country, all three will be accompanied by their parents, and having considered
the objective, up-to-date documentation, it is my opinion that they will have
access to an adequate educational and health system.
[60]
The
applicants thus had an opportunity to make submissions regarding the best
interests of the children in the H&C application. The application was
rejected on July
29, 2008. The ALJR
against that decision was also dismissed by this Court, on November 4, 2008.
[61]
As stated
earlier, the applicants’ allegation that the fact that their daughters are
inadequately prepared for leaving Canada
constitutes irreparable harm is without merit.
[62]
On this
point, the applicants received the negative PRRA decision on November 25, and
they have known since December 11 that their removal date was set for January
29, 2009. They will therefore have had 50 days to prepare their daughters for
leaving.
[63]
A stay can
be granted only for the period preceding the decision on the underlying
application, which in this case is the ALJR against the PRRA decision.
Accordingly, the Court cannot stay the removal for any longer period (Canada
(Minister of Citizenship and Immigration) v. Forde (1997), 210 N.R. 194, 70
A.C.W.S. (3d) 134 (F.C.A.) at paras. 9 and 10).
[64]
The
applicants have not established the existence of irreparable harm, by clear and
convincing evidence.
C. Balance
of Convenience
[65]
The
balance of convenience favours the respondents, in that the applicants have not
established the existence of either a serious issue or irreparable harm.
[66]
In
addition, subsection 48(2) of the IRPA imposes a duty on the respondents to
enforce a removal order as soon as is reasonably practicable.
[67]
The
Federal Court of Appeal has confirmed that in considering the balance of
convenience the public interest must be taken into consideration. It has also
confirmed that the fact that an applicant has exercised a number of remedies
since arriving in Canada, and all have been unsuccessful, may be taken into
consideration in determining 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.)
(Selliah, supra; see also Atwal
v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 427, 136 A.C.W.S. (3d) 109).
[68]
In
this case, the applicants have exhausted all of their remedies under the IRPA.
The Court is not an appellate forum, as Simon Noël J. recently recalled in Aghourian-Namagerdy
v. M.P.S.E.P., IMM-4742-07, IMM-4743-07, IMM-17-08, January 18, 2008.
[69]
The
balance of convenience therefore favours the respondents.
VI. Conclusion
[70]
Having
regard to all of the foregoing, the applicants have not met the tests laid down
by the courts for obtaining a judicial stay.
[71]
The
applicants’ motion for a stay of the removal order is dismissed.
JUDGMENT
THE COURT ORDERS that the motion filed by the applicants for a stay of the removal
order be dismissed.
“Michel
M.J. Shore”
Certified
true translation
Brian
McCordick, Translator
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