Date: 20080325
Docket: IMM-1347-08
Citation: 2008
FC 374
Ottawa, Ontario, March 25, 2008
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
NUR
MOHAMED JAMA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
I. Introduction
[1]
The Applicant, Mr. Nur Mohamed Jama, had a fair and full
opportunity to present evidence and arguments with respect to the Danger
Opinion. It took approximately two years to make the Danger Determination. The
Applicant made three different sets of submissions, July 2005, August 2006 and
March 2007; however, he made a conscious choice not to challenge the Danger
Opinion, rendered on June 11, 2007, although he knew that his removal was
imminent. In fact, the Applicant was scheduled to be removed in July 2007, and
yet, he still did not challenge the Danger Opinion. The only reason he was not
removed, in July of 2007, is the airline’s refusal to transport deportees to Somalia.
No efforts to challenge the Danger Opinion, until now, were made by the
Applicant.
[2]
The Danger Opinion is based on the Minister’s Delegate opinion,
dated June 11, 2007 (excerpts annexed to this Judgment).
[3]
There is no pending underlying application within which this stay
motion can be properly brought. Furthermore, the Applicant has failed to show
that the test for granting an extension of time has been met. To obtain an extension of time, an
Applicant must demonstrate:
i.
a continuing
intention to pursue the application;
ii.
an arguable case for
leave has been shown - application has some merit
iii.
no prejudice arises
from the delay; and
iv.
a reasonable
explanation for the delay exists.
(Canada (Attorney General) v. Hennelly (1999), 244 N.R. 399
(F.C.A.); Grewal v. Canada (Minister of Employment Immigration), [1985]
2 F.C. 263 (F.C.A.); Marshall v. Canada, 2002 FCA 172.)
[4]
The Applicant has acknowledged a lack of the continuing intention
to pursue the application. Moreover, he has failed to show that an arguable
case for leave has been shown, and that a reasonable explanation exists for the
delay. As indicated, the Applicant has been aware of his imminent removal for
duration of 8-9 months. There has been no material change in country conditions
in the part of Somalia to which the Applicant is being removed; in any case,
the Danger Opinion would still stand, as it was made before the alleged
changes, and thus its validity would not be affected in any event. Serious
prejudice would arise to the Respondent if this motion were to be granted in
the circumstances of this case. The Applicant has been held in detention for
over two years awaiting removal. Only in the last few days has the Applicant
come forward with his intention to challenge the Danger Opinion determination.
[5]
The Applicant has not provided any reliable evidence that would
establish new risk issues for regarding his return to Somaliland. The Applicant
has a family there, including his parents and many siblings. Moreover, it
appears that his previous wives/spouses reside there with more than four of his
children (the exact number of ex and present wives/spouses and children in
Hargeisa is not entirely clear on the record).
[6]
The Applicant has had the existing mental health disorder for
many years. Throughout this period he has consistently shown that he has not
been compliant in taking his medication. While he has been incarcerated for
over two years, prior to that time, the efforts of the Toronto Bail program
failed to yield any success in having the Applicant comply with the treatment
regiment required to keep him under control. This fact scenario, in part,
formed the basis of the Danger Opinion. Accordingly, the availability of
medications and/or psychiatric treatment is of no consequence to a person who
has shown extensive reluctance to benefit from same.
[7]
The Applicant’s interests do not outweigh the public interest in
executing removal orders as soon as reasonably practicable in accordance with ss.
48(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(IRPA). The Minister’s obligation under ss. 48(2) of the IRPA 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.
[8]
In considering the balance of convenience, the Court must
consider that the Applicant is a danger to the public in Canada. If a person is
a danger to the public in Canada or has committed crimes against humanity, the
public interest and the balance of convenience favours not staying removal from
Canada. (Choubaev v. Canada (Minister of Citizenship and Immigration), 2002 FCT
816; Grant v. Canada (Minister of Citizenship and Immigration), 2002 FCT
141.)
[9]
As stated by Justice Judith Snider in Chen v. Canada (Minister of
Citizenship and Immigration), 2004 FC 464, [2004] F.C.J. No. 567
(QL): “a clear starting point for viewing public interest in this case
is the objective of the legislative framework in question.” While acknowledging
that Canada’s commitment to non-refoulement is one of the objectives of the
IRPA, an even more pressing objective, which impacts everyone living in Canada,
is the maintenance and protection of the security of Canadian society and the
integrity of Canada’s immigration system.
[10]
The balance of convenience favours the Minister, in that, the
Applicant’s removal would satisfy the objectives, as set out in the IRPA, of
establishing fair and efficient procedures to maintain the integrity of the
Canadian refugee system, protecting the safety and security of Canadian
society, and promoting international justice and security by denying access to
Canadian territory to persons who are security risks or serious criminals. (IRPA,
ss. 3(2)(e), (g) and (h).)
II. Background
[11]
The facts set out in the affidavit of Ms. Karen Miranda, the email
explanation received from Officer, Mr. Bob Hickson, the Danger Opinion, dated
June 11, 2007, and the extensive materials filed by the Applicant are self
explanatory. (The annexed document highlights elements therein.)
III. Issue
[12]
Has the Applicant satisfied all three parts of the conjunctive
test for a stay?
IV. Analysis
[13]
The test for the granting of an Order staying execution of a
removal order, is:
a) whether there
is a serious question to be determined by the Court;
b) whether the
party seeking the stay would suffer irreparable harm if the stay were not issued;
and
c) whether, on
the balance of convenience, the party seeking the stay will suffer the greater
harm from the refusal to grant the stay.
(Toth v.
Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302
(F.C.A.); RJR- MacDonald Inc. v. Canada (Attorney
General),
[1994] 1 S.C.R. 311.)
[14]
The test for a stay is conjunctive and the Applicant must
therefore satisfy each branch of this tri-partite test.
Serious
Issue
[15]
As the Applicant has failed to establish a serious issue, this
motion ought to be dismissed on this basis alone. This stay motion attempts to
put into issue a Danger Opinion which was rendered 8-9 months previously. The Applicant
made a conscious choice not to challenge the Danger Opinion, and he is
now irrevocably out of time. In the circumstances, there is no underlying
application within which this stay motion can be heard.
[16]
On June 11, 2007, a Minister’s Delegate issued an opinion,
pursuant to paragraph 115(2)(a) of the IRPA that the Applicant
constitutes a present and future danger to the public in Canada. The decision
was prepared in accordance with Article 33(2) of the United Nations
Convention on the status of refugees, which permits the host country to
remove a refugee who has been convicted of a particularly serious crime and who
constitutes a danger to the country. In addition to the danger assessment, the
opinion includes a consideration of the Applicant’s risk upon return to Somaliland
in accordance with the Supreme Court of Canada decision in Suresh v. Canada (Minister
of Citizenship and Immigration), [2002] 1 S.C.R. 3, and of humanitarian
and compassionate elements. This consideration addressed his personal
circumstances. (Reference is also made to the Danger Opinion.)
[17]
There has not been a material negative change in country
conditions in the region to which the Applicant is being removed. (IRPA, s. 112 and s. 115; Ragupathy
v. Canada (Minister of Public
Safety and Emergency Preparedness), 2006 FC 1370 (T.D.), at paras. 15-22.)
Irreparable Harm
[18]
The onus is on the Applicant to demonstrate, through clear and
convincing evidence of irreparable harm, that the extraordinary remedy of a
stay of removal is warranted. Irreparable harm must constitute more than a
series of possibilities and cannot be simply based on assertions and speculation.
(Atwal
v. Canada (Minister of Citizenship and Immigration), 2004 FCA
427.)
[19]
The Supreme Court of Canada has held that such harm must be done
to the Applicant, not to a third party. (RJR-MacDonald Inc., above, at para. 58.)
[20]
The Federal Court jurisprudence
also establishes that irreparable harm must be something more than the inherent
consequences of deportation. As Justice Denis Pelletier stated, in Melo v. Canada (Minister of
Citizenship and Immigration) (2000), 188 F.T.R. 39:
[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.
.
[21]
The Applicant’s extensive family lives in the area to which the
Applicant is being removed. During his extensive past in the U.S. and Canada,
he has not been compliant with appropriate treatments/medications. Accordingly,
the availability of same is immaterial to this Applicant as the state cannot
force compliance. Contrary to the vague representations by the Applicant,
regarding the treatment of mentally ill individuals, his other mentally ill
siblings are institutionalized, and not “tied to a tree”. As the Applicant has
failed to satisfy the test for irreparable harm, this motion ought to be
dismissed on this basis alone.
Balance of
Convenience
[22]
It is trite law that the public interest must be taken into
consideration when evaluating this last criterion. (RJR-MacDonald Inc.,
above; Blum v. Canada (Minister of Citizenship and Immigration) (1994),
90 F.T.R. 54 (F.C.T.D.), by Justice Paul Rouleau.)
[23]
In this context, the very recent statements of the Supreme Court of
Canada in Medovarski v. Canada (Minister of Citizenship and
Immigration), [2005] 2 S.C.R. 539, concerning the intent of the
legislation. The Right Honourable Berverley McLachlin, Chief Justice of Canada,
speaking for a unanimous Court, stated:
[9] The
IRPA enacted a series of provisions intended to facilitate the
removal of permanent residents who have engaged in serious criminality. This
intent is reflected in the objectives of the IRPA, the provisions of the
IRPA governing permanent residents and the legislative hearings
preceding the enactment of the IRPA.
[10] The
objectives as expressed in the IRPA indicate an intent to prioritize
security. This objective is given effect by preventing the entry of applicants
with criminal records, by removing applicants with such records from Canada,
and by emphasizing the obligation of permanent residents to behave lawfully
while in Canada. This marks a change from the focus in the predecessor
statute, which emphasized the successful integration of applicants more than security:
e.g. see s. 3(1)(i) of the IRPA versus s. 3(j) of the
former Act; s. 3(1)(e) of the IRPA versus s. 3(d) of the
former Act; s. 3(1)(h) of the IRPA versus s. 3(i) of the
former Act. Viewed collectively, the objectives of the IRPA and its
provisions concerning permanent residents, communicate a strong desire to treat
criminals and security threats less leniently than under the former Act.
…
[12] In
introducing the IRPA, the Minister emphasized that the purpose of
provisions such as s. 64 was to remove the right to appeal by serious
criminals. She voiced the concern that "those who pose a
security risk to Canada be removed from our country as quickly
as possible".
13
In summary, the provisions of the IRPA and the Minister's comments
indicate that the purpose of enacting the IRPA, and in particular s. 64,
was to efficiently remove criminals sentenced to prison terms over six months
from the country. Since s. 196 explicitly refers to s. 64 (barring appeals by
serious criminals), it seems that the transitional provisions should be
interpreted in light of these legislative objectives. (Emphasis added.)
[24]
The balance of convenience heavily favours the Respondent in the
circumstances. The Minister is seeking to protect the Canadian public and, with
that objective in mind, is carrying out his statutory duty. As Justice William
P. McKeown stated, in Gomes
v. Canada (Minister of
Citizenship and Immigration), [1995] F.C.J. No. 199 (QL):
[7] With
respect to the balance of convenience test, I am in agreement with the
reasoning of Rothstein J. in Mahadeo v. Canada (Secretary of State),
October 31, 1994, (unreported), Court File IMM-4647-94 (F.C.T.D) [Please see [1994] F.C.J. No. 1624].
In that case, Rothstein J. stated that when the applicant is guilty of welfare
fraud or has been convicted of a criminal offence in Canada, the balance of convenience
weighs heavily in favour of the respondent. In this case the
applicant was convicted of assault causing bodily harm, which I find to
outweigh any consideration of the emotional devastation of the applicant's
family. I therefore find that the balance of convenience in this case lies with
the respondent.
[8] Given
my negative findings on the first two elements of the tripartite test, I do
find it necessary to consider the issue of irreparable harm. (Emphasis added.)
[25]
The public interest is to be taken into account and weighed together
with the interests of private litigants. The Applicant has not met the third
aspect of the tri-partite test, insofar as the balance of convenience favours
the Minister and not the Applicant. (Manitoba (Attorney General) v. Metropolitan
Stores (MTS) Ltd.,
[1987] 1 S.C.R. 110, at para. 146.)
[26]
In Dugonitsch
v. Canada (Minister of Employment
Immigration),
[1992] F.C.J. No. 320 (F.C.T.D.), Justice Andrew MacKay set out the
considerations pertinent to assessing balance of convenience:
Absent
evidence of irreparable harm, it is strictly speaking unnecessary to consider
the question of the balance of convenience. Nevertheless, it is useful to recall
that in discussing the test for a stay or an interlocutory injunction in the
Metropolitan Stores case Mr. Justice Beetz stressed the importance of giving
appropriate weight to the public interest in a case where a stay is sought
against a body acting under public statutes and regulations which have not yet
been determined to be invalid or inapplicable to the case at hand. That public
interest supports the maintenance of statutory programs and the efforts of
those responsible for carrying them out. Only in exceptional cases will the
individual’s interest, which on the evidence is likely to suffer irreparable
harm, outweigh the public interest. (Emphasis added.)
[27]
The comments of Justice John Maxwell Evans in Selliah v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 261, are also
applicable:
[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.)
[28]
Section 48 of the IRPA requires the Minister to
remove persons, such as the Applicant, as soon as reasonably practicable.
[29]
In all of these circumstances, staying the Applicant’s removal would
undermine the fairness, integrity, and confidence in Canada’s system of
immigration control; therefore, the balance of convenience favours the
Respondent.
[30]
The Applicant seeks extraordinary equitable relief. It is trite
law that the public interest must be taken into consideration when evaluating
this last criterion. In order to demonstrate that the balance of convenience
favours the Applicant, the latter should demonstrate that there is a public
interest not to remove him, as scheduled. In Townsend, Justice Marshall
Rothstein, found that the balance favoured the Minister given the “appellant’s
long criminal record and current costly incarceration outweigh the appellant’s
lengthy residence in Canada”. (Townsend v. Canada (M.C.I.) (25 June 2004), Doc.
No. A-167-04, at para. 6; RJR-MacDonald Inc., above, Blum, above;
Tesoro v. Canada (Minister of
Citizenship and Immigration), 2005 FCA 148; Thanabalasingham v. Canada (Minister of Public
Safety and Emergency Preparedness), 2006 FC 486.)
[31]
As stated by Justice John Sopinka in Canada (Minister
of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711:
[32]
In the within motion, the Applicant has not demonstrated that the
balance of convenience favours the non-application of the law nor outweigh the
public interest; therefore, the risk assessment performed in the context of the
Danger of Opinion does not fall “within a range of possible acceptable outcomes
which are defensible in respect of the facts and the law”, as specified in Dunsmuir
v. New Brunswick, 2008 SCC 9.
[33]
In considering the balance of convenience, the Court must
consider whether the Applicant is a danger to the public in Canada. If a person
is a danger to the public in Canada, the public interest and the balance of
convenience favours not staying removal from Canada. (Choubaev, above; Grant,
above.)
[34]
As stated by Justice Snider in Chen, above, “a clear
starting point for viewing public interest in this case is the objective of the
legislative framework in question.” While acknowledging that Canada’s
commitment to non-refoulement is one of the objectives of the IRPA, an even
more pressing objective, which impacts everyone living in Canada, is the
maintenance and protection of the security of Canadian society and the
integrity of Canada’s immigration system.
[35]
The balance of convenience favours the Minister, in that, the
Applicant’s removal would satisfy the objectives, as set out in IRPA, of
establishing fair and efficient procedures to maintain the integrity of the
Canadian refugee system, protecting the safety and security of Canadian
society, and promoting international justice and security by denying access to
Canadian territory to persons who are security risks or serious criminals. (IRPA,
ss. 3(2)(e), (g) and (h).)
V. Conclusion
[36]
The Applicant had a fair and full opportunity to present evidence
and arguments with respect to the Danger Opinion. He made a conscious choice
not to challenge the Danger Opinion, although he knew that his removal was
imminent. He was scheduled to be removed in July 2007, and, yet, he still did
not challenge the Danger Opinion. The only reason he was not removed in July of
2007, is the airline’s refusal to transport him. He has known all along that he
was to be removed as soon as possible, yet he made no efforts to challenge the
Danger Opinion, until now. There is no pending underlying application, no
pending motion for extension of time to challenge the Danger Opinion, and no
prospects of being granted the extension of time. Moreover, he has not provided
any reliable evidence that would establish new risk issues for regarding his
return to Somaliland, an entirely separate region of Somalia. In these
circumstances, in the present case, the Applicant’s interests do not outweigh
the public interest in executing removal orders as soon as reasonably
practicable in accordance with ss. 48(2) of the IRPA. The Minister’s obligation
under ss. 48(2) of the IRPA 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. (Selliah, above, at para.
22.)
ORDER
THIS COURT ORDERS that the application for a stay of
removal from Canada, be dismissed.
“Michel M.J. Shore”
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