Docket: IMM-1236-17
Citation:
2017 FC 307
[ENGLISH TRANSLATION]
Ottawa, Ontario, March 23, 2017
PRESENT: The Honourable Mr. Justice Roy
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BETWEEN:
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HERIBERTO
TAMAREZ GARCIA
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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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ORDER AND REASONS:
[1]
The applicant seeks a stay of his removal to the
Dominican Republic, his country of origin, which is scheduled for March 25,
2017. The application for a stay is dismissed, because it does not meet any of
the required conditions.
[2]
After a few years’ stay in the United States,
where this applicant was found guilty of criminal offences, he arrived
illegally in Canada on February 26, 2014. He said that he came to Canada to
join his wife, but this reunion never took place since, according to the
applicant, his wife had already obtained a divorce.
[3]
On June 2, 2014, the applicant was stopped by
the police, who noted the applicant’s clandestine arrival. Two days later, on
June 4, the applicant made a refugee claim.
[4]
He was married in August 2014. His new spouse
could sponsor him. On October 29, 2014, he made a spousal application for
permanent residence in Canada.
[5]
The refugee claim was dismissed on May 22, 2015,
under section 98 of the Immigration and Refugee Protection Act, S.C. 2001,
c. 27 [the Act]:
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Exclusion — Refugee Convention
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Exclusion par application de la Convention sur les Réfugiés
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98 A
person referred to in section E or F of Article 1 of the Refugee Convention
is not a Convention refugee or a person in need of protection.
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98 La personne visée aux sections E ou
F de l’article premier de la Convention sur les réfugiés ne peut avoir la
qualité de réfugié ni de personne à protéger.
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[6]
The applicant was therefore excluded because he
committed a serious non-political crime outside of the country of refuge prior
to his admission as a refugee. He is inadmissible to Canada under section 36 of
the Act.
[7]
There was a Pre-Removal Risk Assessment. It was
refused because [TRANSLATION] “the
applicant did not provide evidence that would establish that he would be
exposed to a personal risk in the Dominican Republic.” (PRRA decision, page 37 of the Respondent’s Reply Record).
[8]
The applicant argues that he should not have to
leave Canada as long as his rehabilitation application and his permanent residence
application have not been concluded. The application for residence cannot be
granted as long as the rehabilitation has not been heard to lift the
inadmissibility. Rehabilitation is set out in paragraph 36(3)(c) of the Act and
persons deemed to have been rehabilitated are described in section 18 of the
Immigration and Refugee Protection Act, SOR/2002-227.
[9]
Indeed, the evidence indicates a lack of
willingness on the applicant’s behalf to obtain that rehabilitation. As early
as October 31, 2016, Citizenship and Immigration Canada [CIC] authorities
advised the applicant that his file was not complete. On March 10, 2017, CIC
reminded the applicant that the 60-day period to complete the file was expired
and that he had been granted an additional 30 days. If the documentation was
not completed, the rehabilitation application would be considered abandoned.
[10]
Under these circumstances, it is difficult to
understand how the enforcement officer could be criticized for refusing a stay,
even if the officer could stay the removal based on the applications pending
before CIC.
[11]
I have serious doubts about the possibility of a
stay, even if the applications were close to fruition (Baron v Canada,
2009 FCA 81, [2010] 2 FCR 311[Baron]). It is clear to me that someone
who is not diligent cannot ask for more time to dispose of his remedies to
attempt to justify a stay on a removal order.
[12]
It is difficult to grasp the legal framework in
which this applicant would have liked to operate. In fact, the record indicates
that on March 17, 2017, an application for leave and for judicial review was
filed with respect to the notice given to the applicant by an enforcement
officer on March 6, 2017, to report on March 25, 2017. This Court has
consistently held that such a notice is not a reviewable order (Anokwuru-Nkemka
v Canada (Citizenship and Immigration), 2016 FC 337). Essentially, the
applicant argues that he should have been granted a stay even before he applied
for an administrative stay. A stay may be granted when a serious issue is
raised in an underlying judicial review. If there is a serious issue to decide,
the Act allows an interim measure. But, in this case, there was no decision or
order made by a federal board, commission or other tribunal, that gives rise to
an application for judicial review. Rather, the applicant disputes the notice
he received to report for his removal scheduled for March 25, 2017. One could
not imagine how this could be done. On closer scrutiny, the applicant seeks a
stay simply because other recourse is pending, regardless of whether there is a
serious issue raised before this Court on judicial review. The stay application
could have been dismissed on this basis alone.
[13]
From what I understand, that administrative stay
application was made on March 13, 2017, and counsel for the respondent advises
us that the administrative stay was refused on March 20, 2017. We have opted to
consider the refusal of the administrative stay as the basis for the
application for a judicial stay. This pragmatism was possible because the
situation did not change between the stay application that was submitted to
this Court, and the application for, and refusal of, the administrative stay.
This did not prejudice the applicant or the respondent.
[14]
The applicant, to be successful in his stay
application, had to satisfy the Court that there was a serious issue for debate
in the underlying application for judicial review such that the applicant’s
removal had to be stayed. I could not find anything anywhere that would suggest
what serious issue could possibly be raised. The only issue that appears to be
submitted is that the applicant should be able to remain in Canada while his
rehabilitation application and permanent resident applicant are processed.
However, the enforcement officer’s jurisdiction is very limited (Canada
(Public Safety and Emergency Preparedness) v Shpati, 2011 FCA 286, [2012] 2
FCR 133 and Baron, at paras 48 to 50). This is not a serious issue that
has any likelihood of success (Wang v Canada, 2001 FCT 148; [2001] 3 FCR
682) especially since the applicant did not expedite the rehabilitation
application (Baron, at para 51).
[15]
The second test is that of irreparable harm.
Here again, the applicant has the burden of demonstrating that he will suffer
irreparable harm if he is removed to his country of origin. The irreparable
harm test is not satisfied by the Pre-Removal Risk Assessment application or by
the arguments made regarding this stay. The letters submitted have no persuasive
value (Gateway City Church v Canada, 2013 FCA 126, at paras 15 and 16).
The arguments relating to an alleged danger never reached the threshold of
plausibility by virtue of the quality of the evidence.
[16]
Finally, the balance of convenience favours the
government in this matter. Section 48 of the Act requires the Minister to
execute the removal order as soon as possible. The considerations raised by the
applicant are void and the public interest to respect the Act must prevail.
[17]
Ultimately, on a stay application, the applicant
must persuade the Court of the existence of the three conditions that were just
raised. If a single condition were not met, this would be sufficient to dismiss
the application. In this case, not one of the three conditions was met. The
application for a stay is therefore dismissed.
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