Tesoro v. Canada (Minister of Citizenship and Immigration), 2005 FCA 148

Date: 20050427

Docket: A-428-04

Citation: 2005 FCA 148

Present:           The Honourable Mr. Justice Evans

BETWEEN:

                                                          EMANUELE TESORO

                                                                                                                                            Appellant

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                            Heard at Toronto, Ontario, on April 6, 2005.

                                    Order delivered at Toronto, Ontario, on April 27, 2005.

REASONS FOR ORDER BY:                                                                                         EVANS J.A.

Date: 20050427

Docket: A-428-04

Citation: 2005 FCA 148

Present:           The Honourable Mr. Justice Evans

BETWEEN:

                                                          EMANUELE TESORO

                                                                                                                                            Appellant

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                                        REASONS FOR ORDER

EVANS J.A.

A.        INTRODUCTION

[1]                Emanuele Tesoro came from Italy to Canada with his family when he was 14 years old. He is now 52. His wife, whom he met in 2002 and married in 2004, parents, siblings, nephews, and nieces are all in Canada. He has a married daughter by a previous marriage who lives in the United Kingdom. Although he has been a permanent resident since 1967, he has never become a Canadian citizen.

[2]                In December 2001 a deportation order was issued against him on the basis of convictions in Canada on 33 counts of fraud, forgery and perjury, offences for which he was sentenced to 38 months' imprisonment. He is to report on May 10, 2005, for removal to Italy, his country of nationality.

[3]                Mr. Tesoro has brought a motion to stay his removal, pending the disposition of an appeal to this Court from a decision of Justice Gibson of the Federal Court (Tesoro v. Canada (Minister of Citizenship and Immigration), 2004 FC 984). In that decision, Justice Gibson dismissed his application for judicial review to set aside the refusal of the Immigration Appeal Division of the Immigration and Refugee Board ("IAD") to reopen its rejection of his appeal against deportation.

[4]                In order to obtain a stay, Mr. Tesoro must establish that he satisfies the familiar three-part test in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.). The principal issue before me is whether Mr. Tesoro's removal pending the disposition of his appeal will cause irreparable harm.

B. HISTORY OF THE PROCEEDING

[5]                On December 10, 2001, Mr. Tesoro filed an appeal with the IAD requesting a stay of the deportation order on "equitable" grounds under paragraph 70(1)(b) of the then applicable statute, the Immigration Act, R.S.C. 1985, c. I-2. However, before the IAD decided the appeal, the Immigration Act was replaced by the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"). Subsection 64(1) of the IRPA discontinued appeals to the IAD on "equitable" grounds by persons ordered deported because they were inadmissible for "serious criminality". Since he had been sentenced in Canada to a term of imprisonment of at least two years, Mr. Tesoro's convictions came within the definition of "serious criminality" in subsection 64(2).

[6]                On August 30, 2002, the IAD notified Mr. Tesoro that his appeal was discontinued by subsection 64(1), which applied to him by virtue of the transitional provisions of the IRPA, especially section 196.

[7]                In a letter written on behalf of Mr. Tesoro on November 21, 2002, the IAD was asked to reopen its decision to reject his appeal, because the IAD had breached the duty of procedural unfairness by rejecting Mr. Tesoro's appeal without giving him an opportunity to make representations on the interpretation of the transitional provisions of the IRPA.

[8]                On May 7, 2003, the IAD advised Mr. Tesoro that it would not reopen the decision, on the ground that, even if it ought to have heard Mr. Tesoro before rejecting his appeal, it was clear that the appeal was discontinued by section 196. Hence, whatever might be said to the IAD as to why Mr. Tesoro should not be deported could make no difference to the outcome.

[9]                By the time that the application for judicial review of the refusal to reopen came before Justice Gibson, this Court had decided Medovarski v. Canada (Minister of Citizenship and Immigration), [2004] 4 F.C.R. 48, 2004 FCA 85, which, in effect, upheld the position taken by the IAD. That is to say, section 196 applies section 64 of the IRPA retroactively to appellants who, at the time that the IRPA came into force, had filed an appeal to the IAD but had not been granted a stay of their deportation by the IAD "having regard to all the circumstances of the case."

[10]            Because he was bound by Medovarski, Justice Gibson dismissed the application for judicial review, on the ground that reopening the appeal could not result in a different decision. However, since leave had been sought to appeal Medovarski to the Supreme Court of Canada,

he certified as a question for appeal the proper interpretation of section 196. After Justice Gibson rendered his decision, the Supreme Court granted leave in Medovarski. That appeal is scheduled to be heard in June 2005.

C.         ISSUES AND ANALYSIS

[11]            The question to be decided is whether the Court should exercise its discretion to stay Mr. Tesoro's removal, pending the disposition of his appeal to this Court. I shall consider in turn each element of the Toth test, while being mindful of the limitations of an undue reliance on a "checklist" approach: see Robert J. Sharpe, Injunctions and Specific Performance, looseleaf (Aurora, Ont.: Canada Law Book Inc., last update November 2004) at ¶ 2.60-70.

(i) Serious issue

[12]            It is common ground that, in view of the grant of leave by the Supreme Court of Canada in Medovarski, Mr. Tesoro's appeal raises a serious issue, namely, whether the IAD's refusal to reopen its rejection of the appeal should be set aside. If Medovarski is reversed, the IAD's refusal to reopen is likely to be set aside for breach of the duty of fairness. However, even if it is, and the IAD reopens the appeal, the outcome of the appeal itself is not a foregone conclusion.

(ii) Irreparable harm

[13]            Counsel for Mr. Tesoro, Mr. Poulton, raises three arguments in support of his contention that Mr. Tesoro's removal would inflict irreparable harm which, if his appeal to this Court were allowed, could not be compensated by a monetary award.

(a) jurisdiction of the IAD

[14]            Mr. Poulton says that, if removed, Mr. Tesoro would not benefit from winning the appeal of Justice Gibson's decision, because the IAD would have no jurisdiction to reopen his appeal. He relies on section 71 of the IRPA for the proposition that the Board loses jurisdiction as soon as an appellant leaves Canada under an order of removal.

[15]            Mr. Poulton concedes that the previous Immigration Act conferred jurisdiction on the IAD to reopen appeals, even after the applicant had been removed from Canada: Canada (Minister of Citizenship and Immigration) v. Toledo, [2000] 3 F.C. 563 (C.A.). However, he argues, in enacting section 71 of the IRPA, Parliament must be taken to have intended to change the law by taking away the IAD's jurisdiction to decide appeals by permanent residents who have already left Canada under a removal order. This is because, counsel says, the IRPA removed the two legal bases on which Toledo was decided.

[16]            First, under the previous law, the IAD's jurisdiction to reopen an appeal against deportation was continuing in nature: [1972] S.C.R. 577">Grillas v. Canada (Minister of Manpower and Immigration), [1972] S.C.R. 577. However, by virtue of section 71, it is no longer exercisable whenever an applicant requests a reconsideration, but only on the ground that the IAD's decision was in breach of the rules of natural justice.

[17]            Second, under the previous law, the IAD could authorize the re-entry into Canada of a deportee without the consent of the Minister, both for the limited purpose of attending the hearing of the appeal and, if the appeal was successful and the Board stayed the removal order, for the purpose of remaining in Canada under such terms as the Board imposed: Immigration Act, subsections 56(1) and 74(2), and section 75. In Toledo, the Court inferred from these provisions that Parliament must have intended the IAD's jurisdiction to reopen the appeal to continue after the person concerned had left Canada.

[18]            Under the IRPA, however, the only provision respecting the return of a deportee relevant to the facts of this case is subsection 52(1). This provides that, if a removal order has been enforced, "the foreign national shall not return to Canada, unless authorized by an officer". The IAD has no power of its own to authorize the return to Canada of a person who left under a removal order.

[19]            Attractively as Mr. Poulton developed his argument, in my opinion the IAD does not lose jurisdiction over an application for the reopening of an appeal because the applicant, who was in Canada when the application was filed, left under a removal order before the IAD considered it.

[20]            First, the more obvious reading of the text of section 71 is that it only requires the applicant to have been in Canada when the application to the IAD was made. This was the interpretation of section 71 adopted in Townsend v. Canada (Minister of Citizenship and Immigration), 2004 FCA 247 at para. 5. The French version of the text is even clearer.

[21]            Second, while the IAD can no longer authorize the re-entry of a person who left under a removal order, this power is now exercisable by an immigration officer. However, this change does not significantly weaken the IAD's ability to control its own process.

[22]            Modern telecommunications generally enable the IAD to conduct hearings without ordering the return of appellants to attend in person. Hence, the fact that the IAD does not have the legal power to authorize the re-entry of an appellant for the purpose of attending a hearing does not in fact compromise its control over its own process.

[23]            Nor does the absence of a general power in the IAD to order the Minister to permit successful appellants to re-enter Canada render ineffective its stay of a deportation order when the appellant has already been removed. Counsel for the Minister stated that, in the absence of evidence of new grounds for excluding an appellant, it would be tantamount to bad faith for an immigration officer to refuse to exercise the discretion under subsection 52(1) to authorize the re-entry of an inadmissible person whose deportation the Board had stayed. Figurado v. Canada (Minister of Citizenship and Immigration), 2005 FC 347 is distinguishable, on the ground that, in that case, no similar opinion or undertaking was offered on behalf of the Minister in respect of a person removed before a pre-removal risk assessment was complete (see para. 37).

(b) undermining the case before the IAD

[24]            In the alternative, Mr. Poulton says that Mr. Tesoro's case before the IAD depends largely on the hardship that will be caused by his separation from his wife and from other members of his close-knit family, as well as by the loss of his job and his inability to find employment in Italy. Counsel argues that, if Mr. Tesoro's appeal succeeds and the IAD hears his appeal on its merits, his claim before the IAD for a stay of his deportation on these grounds will be weakened by his prior removal. He relies on Melo v. Canada (Minister of Citizenship and Immigration) (2000), 188 F.T.R. 39, and Owusu v. Canada (Minister of Citizenship and Immigration), 2003 FCA 470.

[25]          I do not agree. In Melo, the basis of the challenge to the IAD's decision was that it had given insufficient attention to the interests of Mr. Melo's children. There was evidence that the removal of Mr. Melo, even on a temporary basis, would harm the children. Given the close nexus between the ground of review and the harm resulting from removal, his application for judicial review would be rendered ineffective as a remedy.

[26]            Melo was thus not decided on the ground that, if he was removed, Mr. Melo's case would be weakened before the IAD. However, the notion that the weakening of a person's case in subsequent administrative proceedings may constitute irreparable harm was the basis of Owusu.

[27]            Mr. Owusu had made an H. & C. application to remain in Canada so that he could continue to support his children in Ghana from his employment income. His application was refused and he applied for judicial review, on the ground that the H. & C. officer had been insufficiently attentive to the interests of his children. Pelletier J.A. granted a stay pending the hearing of Mr. Owusu's appeal because his removal before his appeal was heard would undermine the basis of his H. & C. application, namely, his financial support of his children.

[28]            In my view, Owusu is distinguishable on the facts. There is no nexus between the ground on which the IAD's refusal to reopen is being impugned and the harms that Mr. Tesoro anticipates will result from his removal. Moreover, the hardships on which he relies in order to stay his removal while his appeal is pending are not likely to diminish after he is removed. For example, the pain caused by Mr. Tesoro's separation from his parents, his siblings and their children will not end with his removal. The choice that his wife must make between life in Canada without him, or life with him in a foreign country, separated from her extended family, is unlikely to become easier if he is removed before the disposition of his appeal in this Court.

[29]            Therefore, in my opinion, it is speculative to assert that, if Mr. Tesoro is removed from Canada, his case for obtaining a stay of his deportation order from the IAD will be significantly weakened, in the event that his appeal to this Court succeeds and the IAD reopens his appeal. I am not persuaded that his absence from Canada between his removal and the reopening of his appeal will have so weakened the equitable bases of his claim as to deprive him of the benefits of winning his appeal in this Court.

(c) family separation

[30]            Finally, Mr. Poulton argues that the touchstone of irreparable harm is not its seriousness, but the fact that it cannot be quantified in money or will not be compensated by an award of damages. If Mr. Tesoro wins his appeal and is eventually brought back to Canada after obtaining a favourable decision on the merits, he will not be entitled to financial compensation for the disruptions and distress caused by removal under a valid deportation order prior to the disposition of his appeal. The pain of separation from family cannot be quantified. Consequently, counsel says, any significant disruption of family relationships following an individual's removal constitutes irreparable harm for the purpose of the test in Toth.

[31]            This position is broadly consistent with the following summary of the law by Lorne Waldman, Immigration Law and Practice, looseleaf (Markham, Ont.: LexisNexis Canada Inc., last update December 2004) at § 11.221:

The jurisprudence on the issue of family separation is far from clear. Although there are some cases that hold that family separation does not constitute irreparable harm, there are others where the court has taken the opposite position. It would appear that the only possible way to reconcile these diverse decisions is to accept that determinations of irreparable harm are very fact-specific. The jurisprudence does indicate that mere inconvenience will not constitute irreparable harm. However, when the credible evidence before the court indicates that the deportation is likely to have a serious impact on the emotional and psychological well-being or educational prospects or health of the applicant or his or her spouse or children, then a stay will be granted [emphasis added].

[32]            In approaching this issue, I would make two preliminary points. First, on a motion to stay a removal pending the disposition of an application for judicial review or an appeal, the focus is limited to the effect of the deportee's temporary absence from Canada pending the disposition of the legal proceeding.

[33]            Second, decisions on the grant of stays tend to be very fact-specific. Motions can come on at very short notice and decisions are often rendered under severe time constraints. Hence, it is not surprising to find some inconsistency in the case law. Nonetheless, in my opinion, irreparable harm in this context may include family separation, and is not limited to threats to a deportee's life and limb. The more difficult issue is to delineate the circumstances in which family separation, and the disruption of personal and other important relationships, constitute irreparable harm.

[34]            In Selliah v. Canada (Minister of Citizenship and Immigration), 2004 FCA 261 at para. 13, I adopted the test formulated in Melo (at para. 21), where Pelletier J. (as he then was) held that, for separation from family to constitute irreparable harm, the hardship of removal must "take it out of the usual consequences of deportation". Melo and Selliah were followed on this point by Richard C.J. in Atwal v. Canada (Minister of Citizenship and Immigration), 2004 FCA 427 at paras. 16-17.

[35]            The question is, therefore, whether, on the evidence before me, the impact of removal on Mr. Tesoro and his family as a result of the separation will be more than "the usual consequences of deportation". This would seem a more difficult test for Mr. Tesoro to meet than that of an impact on family relationships which is sufficiently serious to rise above the level of "mere inconvenience". However, when facts and discretion are all important, the significance of definitional differences in the applicable legal test may prove more apparent than real.

[36]            For one thing, when judicial decisions involve the exercise of discretion on the basis of specific facts, statements about what can constitute irreparable harm must be considered in the context of the facts and arguments in the cases in which they were made.

[37]            Further, to the extent that "serious impact" on family relationships is a less demanding test than "more-than-the-usual-consequences-of-deportation", harms that qualify as irreparable under the former, but not the under latter, may not warrant a stay because, when put into the balance of convenience, they may be outweighed by the public interest in the due enforcement of the law.

[38]            Turning to the facts on which Mr. Tesoro relies, I note, first, what he does not allege. Mr. Tesoro has no children in Canada. Many of the cases in which irreparable harm has been found, including Melo and Owusu, have involved the impact of removal on the deportee's children. He is not his parents' sole source of support, but shares responsibility for his parents with his siblings. Nor is Mr. Tesoro's wife financially dependent upon him.

[39]            On the other hand, Mr. Tesoro's wife, who does not speak Italian, does not intend to join him in Italy before 2007, when she will be entitled to her pension from the provincial public service. Meanwhile, however, she would be able to visit him during her vacations before his case is finally resolved.

[40]            Mr. Poulton referred to the fact that the Minister has recognized that spousal separation is contrary to public policy by providing that an application for permanent resident status will be processed in Canada if the applicant is married to a Canadian citizen or a permanent resident. However, since this Guideline excludes applicants who are subject to removal, it is not very helpful to Mr. Poulton's argument.

[41]            As for Mr. Tesoro's separation from his parents, it is relevant that they are getting on in years: his mother is in her early 70s and his father is a few years older. His mother also has heart problems and may not be able to travel to Italy, although the medical evidence in the record on this point is sparse. As people age, and their health declines, it becomes more difficult to repair the harm of separation: Belkin v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1159.

[42]            Despite the obvious affection in which he is held by his siblings and their children, and his important place in the family, the harm caused by Mr. Tesoro's separation from them is not unusual in the context of deportation, even though two of his sisters have medical conditions.

[43]            As for the anticipated harm to Mr. Tesoro himself of having to live in Italy, I recognize the inevitable hardship for a 52 year-old man of having to leave the country that has been home since he was 14. His removal involves the loss of a job and his prospects of finding new employment may be uncertain, although there was no evidence to support his bald assertion that he would not be able to find work in Italy.

[44]            On the other hand, while he may have good reasons to remain in Canada, he stated that he made frequent trips between Italy and Canada in connection with his gambling activities in Italy and, on two occasions in the last ten years, spent a significant amount of time there. Mr. Tesoro has uncles, aunts and cousins in Italy, and I infer from the silence of his record on the point that he speaks Italian. Italy is also a country with a quality of life broadly comparable to that of Canada. The pre-removal risk assessment officer rejected Mr. Tesoro's submission that, if he was returned there, he would be at risk from organized crime. His presence in Italy may also facilitate further contact with his daughter in the United Kingdom.

[45]            Having regard to all of the above, I am not persuaded that Mr. Tesoro's removal pending the disposition of his appeal will so disrupt his family relationships and cause such distress as to constitute an out of the ordinary consequence of deportation.

(iii) Balance of convenience

[46]            Counsel for Mr. Tesoro conceded that, if he could not establish irreparable harm, he could not obtain a stay on the basis of the balance of convenience. I need therefore say no more about this factor.

[47]            However, if I had determined that Mr. Tesoro's removal would cause irreparable harm, on the ground that the effects of family separation were more than mere inconveniences, I would have located the harm at the less serious end of the range, and concluded that, on the balance of convenience, it was outweighed by the public interest in the prompt removal from Canada of those found to be inadmissible for serious criminality. If the administration of immigration law is to be credible, the prompt removal of those ordered deported must be the rule, and the grant of a stay pending the disposition of legal proceedings, the exception.

[48]            Mr. Tesoro was sentenced to a substantial term of imprisonment following his convictions of serious property offences, which involved forging title documents so as to show him as the owner of five residential properties, with discharged mortgages. He used these forgeries to defraud lenders into advancing loans of $1.5 million, the proceeds of which he transferred through international banks and cannot now be traced.

[49]            Having discovered what had occurred, the home owners were put to the expense of rectifying their title documents and, no doubt, suffered considerable anxiety at the prospect of losing their homes. In addition, the defrauded lenders lost their money. Law enforcement authorities doubt the claims of Mr. Tesoro, who is semi-literate, that he committed these offences alone and that he spent the money on gambling, and in making other undocumented and irrecoverable expenditures.

D.        CONCLUSIONS

[50]            For these reasons, the appellant's motion for a stay will be dismissed.

                "John M. Evans"                            

                                                                                                      J.A.                          

                          FEDERAL COURT OF APPEAL              

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                       A-428-04

STYLE OF CAUSE:                           Emanuele Tesoro v. Minister of Citizenship and Immigration

PLACE OF HEARING:                                 Toronto, Ontario

DATE OF HEARING:                                   April 6, 2005

REASONS FOR ORDER BY:                      Evans J.A.

DATED:                                                          April 27, 2005

APPEARANCES BY:

Ron Poulton                                                      FOR THE APPELLANT

Marianne Zoric                                      FOR THE RESPONDENT

SOLICITORS OF RECORD:          

Ron Poulton

Toronto, Ontario                                               FOR THE APPELLANT

John H. Sims, Q.C.

Deputy Attorney General of Canada                  FOR THE RESPONDENT