Date: 20080228
Docket: IMM-4744-07
Citation: 2008 FC 256
Ottawa, Ontario, February 28, 2008
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
LOUISE MARIE ADAMS
KUNTA ADAMS
MALACHI ADAMS
ATILA ADAMS
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
1. Introduction
[1]
In
Canada since 1999,
the Applicants received a decision to report for removal twenty-two months ago
and did nothing about it for nineteen months. They simply failed to appear. The
Applicants came to the attention of the Respondents eighteen months later,
simply, because, the Principal Applicant was under investigation by the police for
theft. The Applicants have, repeatedly, frustrated the Respondents’ attempt to
remove them from Canada “as soon as reasonably practicable” and have
only sought to challenge the Pre-Removal Risk Assessment (PRRA) decision after
their arrest by Canada Border Services Agency (CBSA): clear prejudice to the
operations of the Respondents, exist.
[2]
It
is well established that remedies on judicial review, including on a motion for
a stay of removal, are discretionary. An applicant is required to come
to Court with clean hands. (Khalil v. Canada (Secretary of
State),
[1999] 4 F.C. 661, [1999] F.C.J. No. 1093 (QL), par. 15; Homes Reality and
Development Co. v. Wyoming (Village), [1980] 2 S.C.R. 1011; Wojciechowski
v. Canada (M.C.I.), IMM-1986-02 (May 6, 2002).)
[3]
The
Applicants received their PRRA in April 2006, together with Directions to
Report for removal on May 20, 2006. Rather than challenging the PRRA then, and
seeking a stay of removal from this Court, the Applicants ignored the
consequence of not obeying their removal orders and simply decided not to appear
for removal. The Applicants ought not be permitted to benefit from their
disregard for the laws of Canada. Where an applicant has not seen fit to
respect Canada’s
immigration laws, and is subject to a warrant for arrest, no entitlement to
relief exists. (Chen v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1464, [2003] F.C.J. No. (QL),
paras. 2, 4; Singh v. Canada (M.C.I.), IMM-5144-05
(August 29, 2005).) Nevertheless, it was decided that the merits of the matter
will be heard and considered, subsequent to the lengthy period of time that the
Applicants have spent in Canada, and, therefore, the following:
2. Preliminary
[4]
Given
the Applicants seek that the Minister of Public Safety and Emergency
Preparedness be ordered to stay the execution of their valid removal orders,
this Minister is added to the Style of Cause.
3. Issues
[5]
The
Supreme Court of Canada has established a tri-partite test for determining
whether interlocutory injunctions should be granted pending determination of a
case on its merits:
(i) whether
there is a serious question to be tried;
(ii) whether
the litigant who seeks the interlocutory injunction would, unless the
injunction is granted, suffer irreparable harm; and
(iii) a
determination on the balance of convenience, in terms of which of the two
parties will suffer the greater harm from an interlocutory injunction, being
either granted or refused, pending a decision on the merits.
(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.)
[6]
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
of proceedings.
4. Analysis
(a) Serious Issue
[7]
The
Principal Applicant and her sons made a claim for protection to the Refugee
Protection Division (RPD). She based her claim on the alleged abuse experienced
by her at the hands of her ex-husband. On the basis of the following, the claim
was refused:
·
Inconsistencies
and implausibilities in the Principal Applicant’s evidence, in addition to the delay
in claiming protection, led to serious credibility concerns;
·
No
reliable evidence that the ex-husband would have any interest in the Principal
Applicant; and
·
The
Applicants’ failure to rebut the presumption of state protection.
(Applicants’ Record, PRRA decision, p. 12.)
[8]
Notably,
Atila, a child of the Applicant, made a separate claim. This was also refused
and leave for judicially review of that decision, was dismissed. It is also
recognized that the Principal Applicant and her sons did not challenge the RPD
decision for nineteen months.
(i) No serious
issue: Principal Applicant sought protection on a new basis, particularly, due
to the August 2005 hurricane and not, specifically, from her ex-husband
[9]
In
the decision, the PRRA Officer noted:
… the applicants have not provided any
additional[sic] submissions to rebut the panel’s findings in its decision.
Instead, the applicants have presented new risks, stating that they cannot
return as they have lived in Canada for 5 years and have no home
to return to as a result of the hurricane that swept through St. Vincent in
August 2005. (Emphasis added.)
(Applicants’
Record, PRRA decision, p. 12.)
[10]
The
Applicants had not challenged the Officer’s decision regarding the risk alleged
for more than a year.
[11]
The
Applicants cannot, after failing, in the past, to have had a credible claim
before the RPD, now allege, before this Court, a risk arising from the
Principal Applicant’s ex-husband and contend that the PRRA officer erred by not
having considered that risk.
[12]
Exhibits
A, C, D and K, all postdate the PRRA decision and, therefore, could not have
been considered by that decision-maker. In addition, Exhibits E, F. and G are
undated: no evidence exists as to whether these documents were ever before the
Officer to consider. Exhibit B predates the PRRA decision, but the Applicants
did not submit this document to the Officer for his consideration. With respect
to the PRRA, the Officer noted that domestic violence was neither raised as a
risk by the Applicants nor did they produce any new evidence on the subject.
The PRRA Officer could not have ignored documents that were not even before him;
and, therefore, made no reviewable error. (Applicants’ Record, pp. 19-23, 28,
29-32, 33-35, 44.)
[13]
It
is trite law that a judicial review of a decision of a tribunal should proceed
only on the basis of the evidence that was before the decision-maker. In the
present context, it is not open to the Applicants to supplement the record with
new documents and ask this Court to make new findings of fact. (Lemiecha
(Litigation guardian of) v. Canada (Minister of Employment
and Immigration), [1993] F.C.J. No. 1333 (QL), para. 4.)
[14]
The
Officer reviewed the U.S. Department of State, February 28, 2005 “Country
Reports on Human Rights Practices – 2004 - St. Vincent and the Grenadines” and
determined that there was “no more than a mere possibility of the applicants
being persecuted.” The Applicants cannot now allege the Officer erred by not
doing further research on domestic violence when they neither submitted any
evidence on the subject, nor raised their fears in that context. (Applicants’
Record, PRRA decision, p. 13.)
(ii) No serious
issue in respect of the PRRA Officer not having considered Humanitarian and
Compassionate (H&C) grounds as no application had been made
[15]
Aside
from the fact that an outstanding H&C is irrelevant to a PRRA, the H&C
application of the Principal Applicant and her sons was not made until November
21, 2006, ten months after the PRRA decision was made, and nine months after
the Applicants failed to appear for removal.
[16]
Contrary
to the Applicants’ submissions, no serious issue arises from the fact that the
Officer did not consider an H&C application that had not, as yet, been made.
(Affidavit of Tom Heinze; Applicants’ Record, Memorandum of Argument, p. 48.)
(iii)
Clerical error not a serious issue when read in context of the
decision
[17]
Finally,
the Applicants allege the Officer erred by determining that they are not at
risk of persecution if returned to Portugal, when, in fact, they
are being returned to St. Vincent.
[18]
This
is obviously an inadvertent clerical error. The PRRA Officer clearly
identified their country of nationality as St. Vincent, referred to the risks
raised by the Applicants with respect to the hurricane in St. Vincent,
stated that he conducted a “review of documentary evidence on country
conditions in St. Vincent”, and only cited documentary evidence from St. Vincent as having been
consulted. (Applicants’ Record, PRRA decision, pp. 10-14.)
(iv) Ultimately,
Applicants failed to provide new evidence to the PRRA Officer regarding
domestic violence upon which a positive decision could have been made
[19]
Paragraph
113(a) of the Immigration and Refugee Protection Act, S.C. 2001,
c. 27 (IRPA), indicates that consideration of a PRRA shall be limited:
|
(a) an applicant whose claim to refugee protection has
been rejected may present only new evidence that arose after the
rejection or was not reasonably available, or that the applicant could not
reasonably have been expected in the circumstances to have presented, at the
time of the rejection; (Emphasis added.)
|
a)
le demandeur d’asile débouté ne peut présenter que des éléments de preuve
survenus depuis le rejet ou qui n’étaient alors pas normalement
accessibles ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les
circonstances, de s’attendre à ce qu’il les ait présentés au moment du rejet.
|
[20]
The
Applicants did not present any new evidence that the Principal
Applicant’s ex-husband posed any risk to her, nor, for that matter, even any
interest in her; thus, any information regarding state protection in St.
Vincent would have been irrelevant to their PRRA application.
[21]
It
must be recalled that a PRRA is not an appeal or a rehearing on the merits of a
decision of the RPD. It is not in the mandate of the PRRA Officer to reassess an
original claim. (Khaliq v. Canada (Solicitor General), 2004 FC 1561, [2004]
F.C.J. No. 1889(QL); Klais v. Canada (Minister of Citizenship and
Immigration), 2004 FC 783, [2004] F.C.J. No. 949 (QL); Kaybaki v. Canada
(Solicitor General of Canada)), 2004 FC 32, [2004] F.C.J. No. 27 (QL).)
(b) Irreparable
harm
[22]
Even
if this Court determines that there is a serious issue with respect to the
PRRA, it is not automatically determinative of the issue of irreparable harm.
Rather, irreparable harm is still a matter to be weighed independently. (Onojaefe
v. Canada
(M.C.I.),
IMM-2294-06 (May 10, 2006), paras. 11-16; Akyol v. Canada (Minister of
Citizenship and Immigration), 2003 FC 931, [2003] F.C.J. No. 1182 (QL),
para. 8; Kazmi et al v. Canada (S.G.C.), IMM-2126-04 (March 16, 2004).)
[23]
The
evidence in support of harm must be clear and non-speculative. (John v. Canada (Minister of
Citizenship and Immigration), [1999] F.C.J. No. 915 (QL); Wade v. Canada (Minister of
Citizenship and Immigration), [1995] F.C.J. No. 579 (QL).)
[24]
As
noted in Gray v. Canada (Minister of Citizenship and Immigration), 2004
FC 42, at paragraph 14, this Court will be reluctant to overturn, on an
interlocutory motion, the findings of decision-makers, on evidence that had
been before the decisions-makers, who have considered risk, and to substitute
its evaluation of risk without clear and convincing evidence that the
decision-makers were in error. (Reference is also made to Raza v. Canada (Minister of
Citizenship and Immigration), 2004 FC 42, [2004] F.C.J. No. 31 (QL).)
[25]
Moreover,
to demonstrate irreparable harm, the Applicants must demonstrate that if
removed from Canada, they would suffer
irreparable harm between now and the time at which any positive decision is
made on their application for leave and for judicial review. The Applicants
have not done so. (Reddy v. Canada (Minister of Citizenship and Immigration),
[1999] F.C.J. No. 644 (QL); Bandzar v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 772 (QL); Ramirez-Perez
v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 724 (QL).)
[26]
It
is noted that the Principal Applicant had alleged, in her original RPD claim,
that she had been severely injured in 1982 by her ex-husband; however, she had
only married him years after the alleged incident. While the Principal
Applicant asserts that she would endure the same abuse which she alleged at her
RPD hearing, at the time, no evidence, whatsoever, was adduced to support this
assertion. Rather, the RPD stated, in 2003, that there was no evidence that
her ex-husband would have any interest in her. The only reliable documentary
evidence concerning their relationship is the absolute decree of divorce, made
on May 1, 2001, at the request of her ex-husband. They have been separated
since July 1996, for nearly ten years. (Applicant’s Record, p. 42.)
[27]
While
there are challenges in returning to one’s country of nationality after five
years abroad, this does not constitute irreparable harm. For the purposes of a
stay of removal, “irreparable harm” is a very strict test. It implies a serious
likelihood of jeopardy to the Applicants’ life or safety. Irreparable harm is
very grave. The Applicants’ one year old application for permanent residence on
H&C grounds will continue to be processed, although made after the Applicants’
failure to report for removal. The Applicants may still make further
submissions to support that application, if they wish. (Duve v. Canada
(Minister of Citizenship and Immigration), [1996] F.C.J. No. 387 (QL).)
(c) Balance of
Convenience
[28]
The
public interest is to be taken into account when considering the balance of
convenience and weighing the interests of private litigants. The balance of any
inconvenience that the Applicants might suffer as a result of their removal
from Canada does not outweigh the public interest which the Ministers seek to
maintain in the application of the IRPA, specifically, the interest in
executing removal orders as soon as reasonably practicable. (Manitoba (Attorney General) v.
Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110, para. 146; IRPA, ss.
48(2).)
[29]
The
Federal Court of Appeal has confirmed that the Minister’s obligation to remove
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 v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 261, [2004] F.C.J. No. 1200 (QL),
para. 22.)
[30]
All
of the Applicants have had the benefit of a RPD hearing and of a PRRA; Atila
has also received a decision on her H&C application, and, had made an
application for leave and for judicial review of her RPD decision. This Court
has held in similar cases that “it is in the public interest, in light of this
history, to provide finality to the process” such that the balance of
convenience lies with the Respondents. (Park Lee v. Canada (M.C.I.), IMM-1122-05
and IMM-1182-05 (February 28, 2005), by Justice Judith Snider.)
[31]
The
balance of convenience does not favour anyone who seeks a stay of removal only
after being arrested for failing to appear for removal: the public’s interest
in promoting respect for Canadian immigration laws and executing removal orders
as soon as reasonably practicable outweighs the Applicants’ interests. (Petrovych
v. Canada (M.C.I.), IMM-4413-05 (August 3,
2005), by Justice Snider.)
5. Conclusion
[32]
For
all of the above reasons, the Applicants’ motion to stay the execution of the
removal order is dismissed.
JUDGMENT
THIS COURT ORDERS that the Applicants’ motion to stay the execution of the removal
order be dismissed.
“Michel M.J. Shore”
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