Docket: IMM-1352-17
Citation:
2017 FC 314
[ENGLISH TRANSLATION]
Ottawa, Ontario, March 27, 2017
PRESENT: The Honourable Mr. Justice Roy
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BETWEEN:
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BABA TAMAKA
DIAKITÉ
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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]
Mr. Diakité appears before the Federal Court to
obtain a stay of his removal to his country of citizenship, Mali. This
departure is scheduled for Monday, March 27, 2017.
[2]
In fact, the applicant has known since March 6
that he must leave Canada no later than March 27. However, it seems that it
wasn’t until March 17 that he retained counsel, which would explain the
extremely tight timelines to handle this case. Furthermore, counsel for the
applicant discharged his mandate with due diligence. Counsel cannot be
reproached for the very short timelines.
[3]
I chose to hear the stay application on March
24, 2017, at 5:00 p.m. The decision to dismiss a stay had been received on
March 23, 2017, and that decision for administrative dismissal is subject to an
application for leave and judicial review that is also dated March 23, 2017.
[4]
To receive a judicial stay, the applicant must
fulfill the three conditions of the three-part test set out in RJR-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). Those
three elements are as follows:
1.
Is there a serious issue to discuss during a
hearing about the underlying application for judicial review?
2.
Will irreparable harm be caused to the applicant
if he must leave before a judicial review is heard?
3.
Does the balance of convenience favour the
applicant?
[5]
Mr. Diakité has been in Canada since January
2010. It is reported that he came to Canada as a temporary resident (student).
In fact, he is still studying, because he has been participating in a program
at the École de Technologie (ÉTS) since January. This program cannot be
completed before July 20, 2018. It seems that the applicant has obtained eight
credits per session for the three completed sessions. The applicant indicates
in his affidavit that he has 66 remaining credits before he can receive his
diploma.
[6]
The applicant was convicted of a sexual assault
offence under paragraph 271(b) of the Criminal Code, SRC (1985), c.
C-46. His sentencing was on February 9, 2016, and he was sentenced to a
probationary period of 18 months, in addition to a fine and mandatory community
service. The sentence is suspended.
[7]
Given his conviction, he is subject to a
deportation order. He was subject to a Pre-removal Risk Assessment, which
resulted in a negative decision that was shared on February 22. Based on that,
his departure was scheduled for March 27, 2017.
[8]
The applicant claims that the serious issue to
be discussed in the judicial review must be neither frivolous nor vexatious.
Unfortunately for the applicant, that is not the state of the law. Indeed, it
is settled case law since Wang v Canada (Minister of Citizenship and
Immigration), 2001 FCT 148, [2001] 3 FCR 682 that anyone seeking a stay
whose outcome would be the same, even if the application for judicial review
was allowed, is held to a much higher standard than “neither
frivolous or vexatious.” As noted by Pelletier J., who was with this
Court at that time, at para 11 of the decision “it is
that the test of serious issue becomes the likelihood of success on the
underlying application since granting the relief sought in the interlocutory
application will give the applicant the relief sought in the application for
judicial review.” Thus, the applicant must satisfy the Court that the
success of his application for judicial review is likely (likelihood of
success).
[9]
The serious issue is therefore that the removal
officer committed an error in not deferring the removal because the applicant
is on probation due to his criminal conviction. Furthermore, the applicant
accuses the removal officer of not having seriously and attentively reviewed
the documents submitted, given the short timeline and the fact that he should
be able to remain in Canada until he completes his studies.
[10]
Unfortunately for the applicant, these are not
serious issues. As is well-known, the removal officer’s jurisdiction is very
limited. The applicant is correct in pointing out that there is discretion, but
it most certainly is not sufficient to prove the applicant’s point. In Baron
v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA
81, [2010] 2 FCR 311 [Baron], the Federal Court of Appeal ruled as
follows:
- 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.
[Emphasis
in original]
[11]
It is that the removal officer is faced with the
obligation set out in the Immigration and Refugee Protection Act, SC
2001, c. 27 [the Act], to ensure that the removal order is enforced as soon as
possible, the foreign national subject against whom it was made must leave
Canada immediately (subsection 48(2) of the Act). This generally results in
short-term deferrals, which, in addition to those noted in Baron,
involve difficulties encountered with travel arrangements, the children’s
school schedule, imminent births or deaths. As the Federal Court of Appeal
stated in Canada (Public Safety and Emergency Preparedness) v Shpati,
2011 FCA 286, [2012] 2 FCR 133, “(t)heir functions are
limited, and deferrals are intended to be temporary.” (para 45)
Furthermore, they do not rule on PRRA or H&C. The review of the applicant’s
circumstances is not what he claims. No difficulties such as those recognized
in case law have been shown to be likely.
[12]
The applicant relied on subsection 50(2) of the
Act to argue that the stay was due. That subsection provides that there will be
a stay of the removal order until the term of imprisonment has been served. In
the case at hand, there is no term of imprisonment to serve, because the
criminal court gave the applicant a suspended sentence. As set out in section
731 of the Criminal Code, the court may suspend the passing of sentence:
there is therefore no term of imprisonment to serve. No such sentence was
given. There is no likelihood of success on this issue.
[13]
As can be seen, the issues submitted by the
applicant do not fulfill the parameters in any way. In my view, it might be
possible to defer a removal to account for one-time factors, such as illness.
However, no such difficulty is raised in the case at hand. In fact, the
academic program in which the applicant is registered is far from being
completed. Even in this regard, the stay application would have no likelihood
of success. I therefore find that the serious issue criterion is not met.
[14]
The non-fulfillment of just one of the criteria
is sufficient for the stay application to fail. However, I would add that, in
our case, no irreparable harm has been raised. The fact that Mr. Diakité’s
employer testified by letter that he is an excellent employee, which is to his
credit, cannot constitute irreparable harm. At best, it is potential economic
harm, not for the applicant, but for the employer, who will have to replace Mr.
Diakité.
[15]
Finally, the balance of convenience ultimately
favours the government, because Parliament obliged the Minister to ensure that
those who are inadmissible to Canada leave as soon as the measure can be
enforced. There is a public interest in the law being enforced, and it is to
that duty that the removal officer is called. However, I would have given some
weight to the inconvenience to the applicant because the PRRA issued in October
in 2016 was not shared until the end of February, when events became hectic at
the government’s initiative, putting this applicant’s life in disarray. It’s as
if one had waited only to then expedite the departure. This applicant did not
appear to me to constitute a specific risk.
[16]
I have some sympathy for the applicant, who must
return to his country of origin, which he left a long time ago. However, the
offence for which he was convicted means that he is inadmissible to Canada. The
consequence of inadmissibility is returning to his country of origin, which
always comes with the inherent unpleasantness.
[17]
Consequently, the stay application must be
dismissed.
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