Docket:
IMM-7970-13
Citation: 2013 FC 1281
Toronto, Ontario, December
20, 2013
PRESENT: The
Honourable Mr. Justice Roy
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BETWEEN:
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INDRAKUMARY DESITHARATA MARIYANAYAGAM
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
This is a motion for a stay of the removal that
is to be executed on December 26, 2013. The motion is incidental to an
application for leave and for judicial review of the refusal of an inland
enforcement officer [the “Officer”] to grant a deferral of the removal order.
That decision was made on December 11, but the matter comes to this Court only
now.
[2]
The applicant is a 60-year old woman from Sri Lanka. She has already made a refugee claim, which was denied on February 4, 2013.
Leave for judicial review was also denied on June 26.
[3]
Central to the contention of the applicant is
the fact that the law has been amended recently. New section 170.2 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] makes it clear that
an applicant cannot reopen her refugee application. The section reads:
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170.2 The Refugee Protection
Division does not have jurisdiction to reopen on any ground — including a
failure to observe a principle of natural justice — a claim for refugee
protection, an application for protection or an application for cessation or
vacation, in respect of which the Refugee Appeal Division or the Federal Court,
as the case may be, has made a final determination.
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170.2 La Section de la protection des réfugiés n’a pas compétence pour
rouvrir, pour quelque motif que ce soit, y compris le manquement à un
principe de justice naturelle, les demandes d’asile ou de protection ou les
demandes d’annulation ou de constat de perte de l’asile à l’égard desquelles
la Section d’appel des réfugiés ou la Cour fédérale, selon le cas, a rendu
une décision en dernier ressort.
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Parliament’s intent is strengthened
and made even clearer with new paragraph 112(2)(b.1) of the IRPA:
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112. (2) Despite
subsection (1), a person may not apply for protection if
(b.1) subject
to subsection (2.1), less than 12 months, or, in the case of a person who is
a national of a country that is designated under subsection 109.1(1), less
than 36 months, have passed since their claim for refugee protection was last
rejected — unless it was deemed to be rejected under subsection 109(3) or was
rejected on the basis of section E or F of Article 1 of the Refugee
Convention — or determined to be withdrawn or abandoned by the Refugee
Protection Division or the Refugee Appeal Division;
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112. (2) Elle n’est pas admise à demander la
protection dans les cas suivants :
b.1) sous réserve du paragraphe (2.1),
moins de douze mois ou, dans le cas d’un ressortissant d’un pays qui fait
l’objet de la désignation visée au paragraphe 109.1(1), moins de trente-six
mois se sont écoulés depuis le dernier rejet de sa demande d’asile — sauf
s’il s’agit d’un rejet prévu au paragraphe 109(3) ou d’un rejet pour un motif
prévu à la section E ou F de l’article premier de la Convention — ou le
dernier prononcé du désistement ou du retrait de la demande par la Section de
la protection des réfugiés ou la Section d’appel des réfugiés;
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As a result of that amendment, no
Pre-Removal Risk Assessment [PRRA] is available for 12 months following the
refugee decision.
[4]
Evidently, Parliament wishes for the refugee decision to be final and be
acted upon. The applicant is lamenting the state of the law to the effect that
the possibility to re-open a refugee decision or to seek a PRRA have
disappeared. More than once has it been suggested in the memorandum of facts
and law and at the hearing that this latest attempt would allow the applicant
to make a PRRA application after February 4, 2014.
[5]
Circumventing the law can never be a proper motivation. Furthermore, the
discretion left in the hands of officers under section 48 of the IRPA is
very limited:
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48. (1) A removal order
is enforceable if it has come into force and is not stayed.
(2) If a removal order
is enforceable, the foreign national against whom it was made must leave Canada immediately and the order must be enforced as soon as possible.
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48. (1) La mesure de renvoi est exécutoire depuis sa
prise d’effet dès lors qu’elle ne fait pas l’objet d’un sursis.
(2)
L’étranger visé par la mesure de renvoi exécutoire doit immédiatement quitter
le territoire du Canada, la mesure devant être exécutée dès que possible.
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[6]
The applicant is arguing her case as if the Officer has a broad
discretion to consider issues that would properly be before other bodies. Indeed,
as explicitly stated the applicant wants for the removal order to be lifted in
order to make a PRRA application. As readily concluded by the applicant, she
raises for the first time that she has been involved in an abusive relationship
with her husband in Sri Lanka for some 30 years. She claims that this matter
was not raised as part of her refugee claim because of the shame she feels,
such sentiment being gender as well as culturally based. However the issue of
violence against women was raised by applicant’s counsel at the refugee
hearing, although it appears that it was not argued forcefully and to the
extent the applicant now tries to argue (paragraph 12 of the Refugee Protection
Division decision of February 4, 2013). Actually the applicant “revealed that
she and her husband are estranged”. The Panel even noted “the fact that the
claimant would more likely than not be on her own upon her return to Sri Lanka”.
[7]
It is not disputed that the tripartite test of RGR MacDonald Inc v Canada (Attorney General), [1994] 1 S.C.R. 311 and Toth v Canada (Minister of Employment and
Immigration) (1988), 86 NR 302 (FCA) controls. Hence, the Court must be
satisfied that there is a serious issue to be tried on the judicial review,
that irreparable harm to the applicants will arise if deported, and the balance
of convenience favours them. Failure on the part of the applicants on any prong
of the test is fatal. In my view, it will suffice to discuss the balance of
convenience and the serious issue branches of the test.
[8]
There is a considerable public interest in removing from Canada persons that are without status. A removal order, following due process of the law,
was issued. The IRPA was amended recently (section 48) to limit even more
any residual discretion that was left with officers tasked with removing
foreign nationals. What is more is that Parliament has spoken through new
section 170.2 and paragraph 112(2)(b.1) of the IRPA in order to negate
the ability to have a multiplicity of proceedings. Applicants must put their
best case forward. In this case, the issue of violence against women was raised
before the Panel. Furthermore, the spouses are now estranged. To come at this
late stage with a rather generic allegation need to be weighed against the
integrity of the immigration system as Parliament wants it. Given paragraph
112(2)(b.1), it would be in my view inappropriate to seek to circumvent the
operation of the law.
[9]
The discretion left in the Officer by the law is clearly very limited.
The applicant would have wanted for the Officer to conduct an examination akin
to the two recourses that are now negated by recent amendments. Thus, it will
be only in truly exceptional cases that an Officer will defer a removal order. There
may be circumstances when a new risk emerges. Satisfying a Court that the Officer
has acted unreasonably will itself be a tall order in view of the deference
that is owed decision-makers whose decision is reviewable on a standard of
reasonableness.
[10]
That takes us to a review of the serious issue. The burden on the
applicant is heavier in cases like these. Because the remedy sought on the stay
application is the same as the one claimed in the underlying judicial review
application, I have to “closely examine the merits of the underlying
application”. (Wang v Canada (Minister of Citizenship and Immigration), 2001
FCT 148, [2001] 3 FC 682 at paragraph 10 [Wang]). The test is the
likelihood of success.
[11]
In Baron v Canada (Minister of Public Safety and Emergency Preparedness),
2009 FCA 81, [2010] 2 FCR 311 [Baron], the Court of Appeal instructs reviewing
judges on how stay of removal orders are to be dealt with:
[67]
While I agree entirely with my colleague’s approach to the “serious issue”
prong of the tripartite test in the context of a motion to stay a removal
order, I would add the following. In determining whether a serious issue exists
so as to warrant the granting of a stay of removal, the Judge hearing the
motion should clearly have in mind, first of all, that the discretion to defer
the removal of a person subject to an enforceable removal order is limited, as
explained in Simoes, above, and, particularly, in Wang, above.
Second, the Judge should also have in mind that the standard of review of an
enforcement officer’s decision is that of reasonableness. Thus, for an
applicant to succeed on a judicial review challenge of such a decision, he or
she must be able to put forward quite a strong case. In my view, the appellants
herein clearly did not have such a case to put forward.
With respect, the applicant in this
case did not have a strong case either.
[12]
Accordingly, the standard of reasonableness applies and the deference that
accompanies that standard applies in full force. In the case at hand, the
applicant claims that she has suffered from domestic violence at the hands of
her husband of 30 years. But in proceedings taking place earlier this year, she
also claimed that she was estranged from her husband and indeed she is expected
to be living alone in Colombo when she goes back.
[13]
In Canada (Public Safety and Emergency Preparedness) v Shpati,
2011 FCA 286 [Shpati], the Court of Appeal answers the question “does
the potential mootness of the pending PRRA litigation warrant deferral of
removal?” It answered its question in the following paragraph:
[35]
In my view, the answer to this question is no. If it
were otherwise, deferral would be virtually automatic whenever an individual
facing removal had instituted judicial review proceedings in respect of a negative
PRRA. This would be tantamount to implying a statutory stay in addition to
those expressly prescribed by the IRPA, and would thus be contrary to the
statutory scheme.
[14]
As can be appreciated, the situation has been made even clearer since Shpati
because there cannot be a PRRA anymore. Turning an application for a stay of a
removal order is very much akin to seeking indirectly to do what cannot be done
directly. This is impermissible.
[15]
In paragraph 51 of Baron, above, the Court of Appeal agreed wholeheartedly
with Pelletier J. , as he then was, in Wang, above:
[51]
[…]
- There are a range of factors that can validly influence the
timing of removal on even the narrowest reading of section 48, such as those
factors related to making effective travel arrangements and other factors
affected by those arrangements, such as children’s school years and pending
births or deaths.
- The Minister is bound by law to
execute a valid removal order and, consequently, any deferral policy should
reflect this imperative of the Act. In considering the
duty to comply with section 48, the availability of an alternate remedy, such
as a right to return, should be given great consideration because it is a
remedy other than failing to comply with a positive statutory obligation. In
instances where applicants are successful in their H&C applications, they
can be made whole by readmission.
- In order to respect the policy of the
Act which imposes a positive obligation on the Minister, while allowing for
some discretion with respect to the timing of a removal, deferral should be
reserved for those applications where failure to defer will expose the
applicant to the risk of death, extreme sanction or inhumane treatment. With
respect to H&C applications, absent special considerations, such
applications will not justify deferral unless based upon a threat to personal
safety.
[16]
I cannot find fault with the decision of the Officer that the facts of
this case never rose to the level presented in the preceding paragraph. In Simoes
v Canada (Minister of Citizenship and Immigration) (2000), 7 Imm LR (3d)
141 (FCTD), we find the following paragraph which was endorsed by the Court of
Appeal in Baron, above, at paragraph 49:
In
my opinion, the discretion that a removal officer may exercise is very limited,
and in any case, is restricted to when a removal order will be executed. In
deciding when it is “reasonably practicable” for a removal order to be
executed, a removal officer may consider various factors such as illness, other
impediments to travelling, and pending H & C applications that were brought
on a timely basis but have yet to be resolved due to backlogs in the system.
For instance, in this case, the removal of the Applicant scheduled for May 10,
2000 was deferred due to medical reasons, and was rescheduled for May 31, 2000.
Furthermore, in my view, it was within the removal officer’s discretion to
defer removal until the Applicant’s eight-year old child terminated her school
year. [Footnotes omitted.]
[17]
The applicant would want for the removal order to be deferred until
after she can make a proper PRRA application. In so doing, she wants to
circumvent the IRPA. In view of the very narrow discretion available to
the Officer, it was perfectly reasonable to deny the refusal, especially where
it appears that the case has been split and, at any rate, the allegations never
attained the level required under the law to grant that kind of very
exceptional remedy.
[18]
The applicant made a long exposé about abused women in Sri Lanka and why they are not prone to raise the issue in public. The demonstration would
have been more convincing if it were not for the fact that the issue was known
and even raised in the refugee case. It must be remembered that a removal Officer
may order a stay where there are extreme circumstances. In Baron, above,
the Court of Appeal speaks of being exposed “to the risk of death, extreme
sanction or inhumane treatment”. Justice Harrington captures the same notion in
Shpati v Canada (Public Safety and Emergency Preparedness), 2010 FC 367
at paragraph 41:
[…] The
discretion to be exercised is whether or not to defer to another process which
may render the removal order ineffective or unenforceable, the object of that
process being to determine whether removal of that person would expose him to a
risk of death or other extreme sanction.
[19]
In spite of the valiant effort by counsel for the applicant, the case
never rose to that level.
[20]
I have concluded that the motion fails because it does not have a
likelihood of success in the underlying application for judicial review and the
balance of convenience favours the respondent. The words of Décary J.A. in a
different context, in Legault v Canada (Minister of Citizenship and
Immigration), 2002 FCA 125, [2002] 4 FC 358 still resonate:
In
short, the Immigration Act and the Canadian immigration policy are
founded on the idea that whoever comes to Canada with the intention of settling
must be of good faith and comply to the letter with the requirements both in
form and substance of the Act. Whoever enters Canada illegally contributes to
falsifying the immigration plan and policy and gives himself priority over
those who do respect the requirements of the Act. The Minister, who
is responsible for the application of the policy and the Act, is
definitely authorized to refuse the exception requested by a person who has
established the existence of humanitarian and compassionate grounds, if he
believes, for example, that the circumstances surrounding his entry and stay in
Canada discredit him or create a precedent susceptible of encouraging illegal
entry in Canada. In this sense, the Minister is at liberty to
take into consideration the fact that the humanitarian and compassionate
grounds that a person claims are the result of his own actions. [Emphasis added.]
[21]
As a result, the motion for a stay of the removal order to be executed
on December 26, 2013 is dismissed.
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