Date: 20081211
Docket: IMM-4523-08
Citation: 2008 FC 1364
Ottawa, Ontario, December 11, 2008
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
MICHAEL
ELLERO
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
AMENDED REASONS FOR JUDGMENT
AND JUDGMENT
(This amended
version only amends the file number and nothing else)
I. Overview
[1]
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 an individual’s interest outweigh the
public interest (Aquila v. Canada (Minister of Citizenship and Immigration)
(2000), 94 A.C.W.S. (3d) 960, [2000] F.C.J. No. 36 (QL) (F.C.T.D.); Kerrutt
v. Canada (Minister of Employment and Immigration) (1992), 53 F.T.R. 93, 32
A.C.W.S. (3d) 621; Dugonitsch v. Canada (Minister of Employment
and Immigration)
(1992), 53 F.T.R. 314, 32 A.C.W.S. (3d) 1135 (F.C.T.D.)).
II. Introduction
[2]
The
Applicant
is a citizen of the United
States of America
who requests to stay his deportation to the United States (U.S.), scheduled for
December 11, 2008.
[3]
The Applicant
claimed that members of the Mexican or Italian mafia and others wanted to
“eliminate him” and that the Central Intelligence Agency (CIA) has created a
“psychic profile” on him. The Applicant’s refugee claim was rejected by the
Immigration and Refugee Board, Refugee Protection Division (IRB) because he was
found not to be credible.
[4]
The
Applicant’s Pre-Removal Risk Assessment (PRRA) was also rejected. The risks
identified by the Applicant in his PRRA application were substantively the same
as those which were heard and assessed by the IRB. Much of the documentation
provided to the PRRA officer pre-dates the IRB decision. The remainder of the
documentation provided by the Applicant does not demonstrate a risk upon return
to the U.S.
[5]
The Applicant has failed
to disclose a serious issue and, therefore, he should not be granted a stay of
deportation.
II.
Background
[6]
The
Applicant is a citizen of the U.S.
He came to Canada on October 19, 2005. He
made a claim for refugee protection on November 14, 2005, claiming that members
of the Mexican or Italian mafia and others want to “eliminate him”. Allegedly,
his opponents are fearful that the book he has written will be published in due
course, thereby, exposing the corruption “in the federal government and
elsewhere in the United
States”.
He states that the U.S. government used a
psychic against him and that this all stems from the CIA which has a
“psychological profile” on him (PRRA Decision, dated September 5, 2008, p.
1, Attached as Exhibit “E” to the Affidavit of Cheryl Giles).
[7]
The
Applicant claims he did not seek state protection from the U.S. authorities because he
believes that the police cannot provide physical protection for him against
“the evil and perils of the world” (PRRA Decision, dated September 5, 2008).
[8]
The Applicant’s
claim for refugee status was rejected by the IRB in a decision, dated
December 19, 2006.
[9]
The
Applicant filed an Application for leave and for judicial review seeking to
quash the IRB decision denying that the Applicant is a Convention refugee or
person in need of protection.
[10]
Prior
to the disposition by the Court of the Application for leave and for judicial
review of the IRB decision, but after the close of pleadings, the Applicant
moved for interlocutory relief, seeking (i) an Order to obtain an official
transcript of his hearing before the Board; and (ii) an Order to extend the
time of the case to allow the Applicant to retain an attorney (interlocutory
motion) (Affidavit of Cheryl Giles).
[11]
On
April 23, 2007, Justice Frederick Gibson dismissed the Applicant’s
interlocutory motion. On April 27, 2007, Justice Gibson dismissed the
Application for leave and for judicial review (Affidavit of Cheryl Giles).
[12]
The
Applicant then filed a motion for reconsideration of both Orders of Justice
Gibson (Affidavit of Cheryl Giles).
[13]
The
Applicant’s motion for re-consideration was dismissed by way of an Order of Justice
Gibson, dated June 5, 2007 (Affidavit of Cheryl Giles).
[14]
The Applicant
subsequently submitted an application for a PRRA (Affidavit of Cheryl
Giles).
[15]
The
PRRA officer rejected the Applicant’s application. The PRRA officer found:
(i)
the
risks identified by the Applicant in his PRRA application are substantively the
same as those which were heard and assessed by the IRB;
(ii)
that
there was less than a mere possibility that the Applicant would suffer
persecution should he be returned to the U.S.; and
(iii)
that
there were no substantial grounds to believe the Applicant would face torture,
nor are there reasonable grounds to believe that the Applicant faces a risk to
life or cruel and unusual treatment or punishment if returned to the U.S.
(PRRA Decision, dated September 5, 2008).
[16]
On
October 15, 2008, the Applicant commenced an Application for leave and for
judicial review of the negative PRRA decision (Affidavit of Cheryl
Giles).
IV. Issue
[17]
Has
the Applicant
met the tri-partite test for the granting of a stay of removal?
V. Analysis
The test for a stay
[18]
The
criteria upon
which a stay of execution may be granted are as follows:
(i)
whether
there is a serious question to be determined by the Court;
(ii)
whether
the party seeking the stay would suffer irreparable harm if the stay were not
issued; and
(iii)
whether,
on the balance of convenience, the party seeking the stay will suffer the
greater harm from the refusal to grant the stay.
The requirements of the tripartite test are
conjunctive; that is, the Applicant must satisfy all three branches of the test
before this Court can grant a stay. (Toth v. Canada (Minister of
Employment and Immigration) (1988), 86 N.R. 302, 11 A.C.W.S. (3d) 440 (F.C.A.), RJR-MacDonald Inc. v. Canada
(Attorney General), [1994] 1 S.C.R. 311, Oberlander v. Canada
(Attorney General), 2003 FCA 134, 121 A.C.W.S. (3d) 610).
[19]
The
issuance of a stay is an extraordinary remedy wherein the Applicant needs to
demonstrate “special and compelling circumstances” that would warrant
“exceptional judicial intervention” (Tavaga v. Canada (Minister of Employment
and Immigration)
(1991), 15 Imm. L.R. (2d) 82, 28 A.C.W.S. (3d) 371 (F.C.T.D.); Apotex Inc.
v. Wellcome Foundation Ltd. (1998), 232 N.R. 40, 82 C.P.R. (3d) 429 (F.C.A.)).
[20]
The
Applicant has failed to demonstrate that he meets all three requirements of the
test.
Serious Issue
[21]
To
establish the existence of a serious issue, the Applicant must satisfy the Court
that the underlying application is not frivolous or vexatious (Manitoba (Attorney General) v. Metropolitan
Stores (MTS) Ltd., [1987] 1 S.C.R. 110; Toth, above; RJR-MacDonald Inc., above at para. 44).
[22]
In
establishing a serious issue, the Applicant must show that issues in the
underlying Application for judicial review raise at least an arguable case (Rahman v. Canada (Minister
of Citizenship and Immigration) (2001), 103 A.C.W.S. (3d) 153, [2001] F.C.J.
No. 106 (QL) at para. 15; Molnar v. Canada (Minister of Citizenship
and Immigration), 2001 FCT 325, 104 A.C.W.S. (3d) 1104 at para. 12).
The underlying PRRA
Decision is reasonable
[23]
There
is no serious issue in the underlying application. The Applicant is simply
raising the same points he raised in his motions brought during the Application
for leave to commence judicial review of the IRB decision process and in the Application
for leave of the IRB decision itself. What the Applicant did in using the PRRA
process (and now the emergency motion process) is to re-argue the motions and
applications that were dismissed by this Court during the IRB stage (Affidavit of
Cheryl Giles).
[24]
The
Applicant’s submissions that the PRRA officer erred in not having taken into
account the evidence he submitted in regard to perceived procedural fairness
issues which he allegedly encountered during the IRB process had been heard and
decided upon in previous proceedings before this Court.
[25]
Moreover,
the
letters he attaches as Exhibits A1 and A2, and the excerpts of his Memorandum
of Argument attached to Exhibit A3 were previously filed by the Applicant
during the leave to commence judicial review of the IRB decision process and
have already been disposed of by this Court as explained above (Applicant’s Affidavit,
pp. 8-16).
The PRRA officer considered all the
evidence submitted
[26]
The
PRRA officer’s risk assessment is thorough, well-reasoned and indicative of his
extensive consideration of relevant factors. His assessment included
consideration of the PRRA application, the Applicant’s extensive submissions in
support of his PRRA application, the IRB decision and the documentary evidence
in its entirety as submitted by the Applicant. The PRRA officer also considered
external sources including Freedom House, Freedom in the World (2008), the FBI
Academy – Behavioural Science Unit, the Federal Bureau of Investigation, The
American Civil Liberties Union – Police Practices, and the U.S. Government
Official Web Portal, ‘Law Enforcement and Corrections – Related Agencies’ (PRRA Decision,
dated September 5, 2008).
[27]
The
PRRA officer properly decided not to give consideration to documents submitted
by the Applicant that pre-dated the IRB decision as these documents would have
been available for presentation to the IRB. No explanation was provided by the Applicant
as to why they were not presented at the appropriate time (PRRA Decision,
dated September 5, 2008).
[28]
The
onus is on the Applicant (i) to provide the PRRA officer with new evidence in
support of the PRRA Application, not the same evidence that was before the IRB,
and (ii) to show how the new evidence meets the requirements of section 113 of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) (Kaybaki
v. Canada (Solicitor General of Canada), 2004 FC 32, 128 A.C.W.S. (3d)
784).
[29]
The
“new” evidence submitted by the Applicant consisted of copies of his Rogers bills, fax verification
documents, receipts and copies of baggage claim tickets. Subsection 161(2) of
the Immigration and Refugee Protection Regulation, SOR/2002 22 (Regulations)
requires that a person who makes written submissions must indicate the
relevance of the evidence. The PRRA officer properly found that these items
did not substantiate the risks, cited by the Applicant (PRRA Decision,
dated September 5, 2008).
[30]
The
PRRA officer found that the risks identified by the Applicant in his PRRA are
substantively the same as those which were heard and assessed by the IRB. The
officer did not find that the Applicant’s past treatment, in and of itself,
warranted a granting of protection nor was it indicative of a forward-looking
risk in light of the documentary evidence regarding country conditions in the U.S. and the Applicant’s
personal circumstances (PRRA Decision, dated September 5, 2008).
[31]
The
PRRA officer found it objectively unreasonable that the Applicant did not seek
protection prior to leaving the U.S. and has not shown clear and convincing evidence
that he is unwilling to avail himself of protection in his home country.
Documentary evidence shows that state protection is available (PRRA Decision,
dated September 5, 2008).
[32]
The
decision of the PRRA officer is reasonable. There is no evidence that the PRRA
officer acted arbitrarily or in bad faith, or considered extraneous or
irrelevant factors; furthermore, there is no evidence that the assessment of
the Applicant’s PRRA application was completed in a manner contrary to law or
the duty of procedural fairness.
[33]
The
PRRA officer properly considered the application of the Applicant and
determined, based on the evidence before him, that the Applicant did not
satisfy the statutory criteria under section 96 or 97 of the IRPA.
[34]
It
is not the role of the Court to reweigh the evidence that was before the PRRA officer.
The PRRA officer is not to act as a Court of appeal from a prior
refugee board decision. The PRRA procedure is not an appeal or an application
for review of the IRB decision. Parliament clearly intended to limit the
evidence to be presented in the context of such a procedure itself (Raza et al. v. Canada
(Minister of Citizenship and Immigration), 2007 FCA 385, 370 N.R. 344 at paras. 12, 13 and
16; Quiroga v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1306, 153 A.C.W.S. (3d) 192 at para. 12).
[35]
The
officer’s decision was reasonably open to him on the record and he did not
ignore evidence. Accordingly, the underlying PRRA officer’s decision does not
raise a serious issue Figuardo v. Canada (Solicitor General), 2004 FC 241, 129
A.C.W.S. (3d) 374 at paras. 6-7; PRRA Decision, dated September 5, 2008).
Irreparable
Harm
[36]
The
Applicant must demonstrate that removal will result in a reasonable likelihood
of harm before a finding can be made that removal will result in irreparable
harm (Soriano v. Canada (Minister of Citizenship and Immigration) (2000), 188 F.T.R. 18,
7 Imm. L.R. (3d) 181).
[37]
Irreparable
harm is more substantial and more serious than personal inconvenience. It
implies the serious likelihood of jeopardy to an applicant’s life, liberty or
security of the person, or an obvious threat of ill treatment in the country to
which removal will be effected (Mikhailov v. Canada (Minister of Citizenship
and Immigration) (2000), 191 F.T.R. 1, 97 A.C.W.S. (3d) 727; Frankowski
v. Canada (Minister of Citizenship and Immigration) (2000), 98 A.C.W.S.
(3d) 641; [2000] F.C.J. No. 935 (QL)).
[38]
An applicant’s
subjective fear of returning to his/her country does not constitute irreparable
harm. Objective evidence of harm related to danger must be demonstrated (Ram
v. Canada (Minister of Citizenship and Immigration) (1996), 64 A.C.W.S.
(3d) 657, [1996] F.C.J. No. 883 (QL); Gogna v. Canada (Minister of
Employment and Immigration) (1993), 68 F.T.R. 140, 42 A.C.W.S. (3d) 480
(F.C.T.D.)).
[39]
The
Applicant has not demonstrated that his removal to the U.S. would cause irreparable
harm. The Applicant has not shown that he would be subject to a serious
likelihood of jeopardy to his life, liberty or security as a result of the
removal.
State Protection
[40]
As
the Supreme Court of Canada confirmed, the state is presumed capable of
protecting its citizens and refugee claimants must, therefore, provide “clear
and convincing confirmation” of its inability or unwillingness to protect them.
The Applicant has not done so in this case. Moreover, if there is evidence upon
which the tribunal could conclude that state protection is available to an
applicant, the Court should not intervene (Paul v. Canada (Minister of
Citizenship and Immigration), 2007 FC 398, 310 F.T.R. 307 at para 18; Canada
(Attorney General) v. Ward [1993] 2 S.C.R. 689).
[41]
In
this case, the Applicant is a citizen of the U.S. The documentary evidence indicates that the U.S. makes serious efforts
to protect its citizens. The PRRA officer reasonably concluded that state
protection exists in the U.S. and is available for
the Applicant (PRRA Decision, dated September 5, 2008).
[42]
The
Applicant must demonstrate that he sought state protection. In this case, the Applicant
stated he did not seek protection from the U.S. authorities because he believes the police
cannot provide physical protection for him against “the evil and perils of the
world.” He stated to the PRRA officer that his life would be at risk if he
sought protection and spoke out against his persecutors. There was insufficient
evidence to support this assertion and the PRRA officer found that the Applicant
did not provide clear and convincing evidence that he is unable or unwilling to
avail himself of protection in his home country. Moreover, the PRRA officer found
it objectively unreasonable that the Applicant did not seek state protection
prior to leaving the U.S. (PRRA
Decision, dated September 5, 2008).
[43]
Furthermore,
the PRRA officer found that country conditions have not deteriorated in the U.S. since the Applicant was
before the IRB (PRRA Decision, dated September 5, 2008).
[44]
The
PRRA officer reasonably concluded that there is less than a mere possibility
that the Applicant faces persecution should he return to the U.S. and that the Applicant
is not a person described in section 96 or 97 of the IRPA. The PRRA officer,
therefore, properly rejected the Applicant’s application (PRRA Decision,
dated September 5, 2008); IRPA, ss. 161(2)).
Lack of credibility
found by IRB
[45]
The
IRB determined that the Applicant’s evidence of persecution was not credible and,
therefore, its finding was reasonable:
(a)
The Applicant did
not produce any documentation at the hearing to substantiate his allegations;
(b)
The Applicant did
not produce evidence of having reported any incidents to the police or any
other authority;
(c)
The IRB found
that the Applicant waited three weeks after landing in Canada to claim refugee status.
(IRB Decision, December 15, 2006 at
p. 6).
[46]
This
Court has held that where an Applicant's account was found not to be credible
by the IRB, the 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 FC
931, 124 A.C.W.S. (3d) 1119 at para. 8; Iwekaogwo v. Canada (Minister
of Citizenship and Immigration), 2006 FC 782, 157 A.C.W.S. (3d) 392
at para. 17).
[47]
The
Applicant’s risk has already been assessed a number of times and each time he
was found not to be at risk in his country of origin. This alleged risk,
already reasonably assessed, does not meet the test for irreparable harm (Golubyev v. Canada (Minister of
Citizenship and Immigration), 2007 FC 394, 156 A.C.W.S. (3d) 1147 at para. 13;
Manohararaj v. Canada (Minister of
Citizenship and Immigration), 2006 FC 376, 147 A.C.W.S. (3d) 600).
[48]
As
for the material submitted in Exhibit A4 to the Applicant’s stay motion record,
it is uncertain whether this material was before the PRRA officer. In any
event, these documents do not provide any new information to establish a danger
or a risk to the Applicant.
[49]
The Applicant
has failed to demonstrate irreparable harm. A claimant, rejected by the IRB,
bears the onus of demonstrating that country conditions or personal
circumstances have since changed. The Applicant had not met the test for the
PRRA application and now has not met the test for irreparable harm (Cupid v.
Canada (Minister of
Citizenship and Immigration), 2007 FC 176, 155 A.C.W.S. (3d) 396 at para. 4).
[50]
Irreparable
harm must be evaluated in relation to the country to which the Minister
proposes to return an individual. No irreparable harm exists in the case at
bar; the Applicant is being removed to the U.S. (Radji v. Canada (Minister of
Citizenship and Immigration), 2007 FC 100, 308 F.T.R. 175 at paras. 41-420).
[51]
No
statutory provision exists for a stay pending the review of a PRRA decision.
This indicates that Parliament intended that failed PRRA applicants could be
removed prior to their judicial review application being determined. This is
consistent with the Minister’s duty to execute removal orders as soon as
reasonably practicable (IRPA at s. 231-232; Golubyev, above).
Balance of Convenience
[52]
In
determining the balance of convenience, the Court must determine which of the
two parties will suffer the greater harm by the stay being granted or denied (Manitoba (Attorney General) v.
Metropolitan (MTS) Ltd., above).
[53]
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 an individual’s interest outweigh the
public interest (Aquila, above; Kerrutt,
above; Dugonitsch, above).
[54]
The
IRPA requires the Minister of Public Safety and Emergency Preparedness to
enforce a removal order as soon as is reasonably practicable (IRPA at ss.
48(2)).
[55]
A
finding that the balance of convenience favours the Minister is a sufficient
basis upon which to dismiss a stay motion as specified in the Overview (Singh
v. Canada (Minister of Public Safety and
Emergency Preparedness), 2006 FC 1033, 151 A.C.W.S. (3d) 898).
[56]
In
the present case, the balance of convenience favours the Minister. The Applicant
is now ready for removal and the Minister is under a statutory obligation to
ensure that the Applicant’s removal is carried out as soon as reasonably
possible (IRPA at ss. 48(2)).
VI. Conclusion
[57]
The
Applicant has failed each of the three prongs of the tripartite stay test. As a
result, the Applicant’s motion for a stay of removal is dismissed.
JUDGMENT
THIS COURT ORDERS that the Applicant’s motion for a stay of removal be dismissed.
Obiter
It is
suggested that cooperation be in effect between the two governments, that of
Canada and the United
States, to
medically assist Mr. Ellero in ensuring that he be treated in the most
appropriate manner, recognizing a need exists for medical assessment and/or
treatment throughout the removal process and immediately upon his return to the
United States. The Applicant has said
during the course of the hearing that medical issues can be dealt with in the
United States as effectively as in Canada.
(However, the Applicant fears that an initial period of forty-five days may
ensue prior to eligibility for medical care in the United States, should he be removed.) According to the
jurisprudence, medical issues must be taken into account in respect of removals
to ensure that the physical well-being of an applicant be taken into account,
thus, also in the transfer process, should the need arise. Mention is made of
treatment which the Applicant is allegedly receiving for high-blood pressure in
addition to all else that may be evaluated for which medication and treatment may
be necessary; thus, it is incumbent that any medical condition which may be of
a serious nature be attended to in such a case.
“Michel M.J. Shore”
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