Date: 20060608
Dockets: IMM-6500-05
IMM-6501-05
IMM-6503-05
Citation: 2006 FC 722
Ottawa,
Ontario, June 8, 2006
Present:
The Honourable Mr. Justice Harrington
BETWEEN:
PAY
PAY MUNDE
Applicant
and
MINISTER OF CITIZENSHIP AND
IMMIGRATION AND THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR ORDER
[2]
Mr. Pay
Pay left
the DRC in 1997 and claimed refugee status in Canada on the basis that he was related to Pierre Pay
Pay, his uncle and adoptive father, the political history of Pierre Pay Pay and
the risk of persecution created by his perceived political opinions and his
membership in a social group. This claim was denied.
[3]
One of the
steps that a number of people take in like situations is a PRRA application,
formerly known as the Post Determination Refugee Claimants in Canada
application (PDRCC).
However, Mr. Pay Pay did not initiate this process pursuant to the general
administrative stay now provided under section 230 of the Immigration
and Refugee Protection Regulations (IRPR) for the DRC. This section
provides for a general administrative stay in particular situations, for
example, after the Tsunami in Sri Lanka.
[4]
An
administrative stay, as state above, does not apply to certain classes of
persons, such as persons inadmissible for serious criminality. Since
Mr. Pay Pay had been found guilty of driving while impaired and causing
bodily injury under subsection 255(2) of the Criminal Code, he is
therefore inadmissible for a general administrative stay on the grounds of serious
criminality under paragraph 36(1)(a) of the Immigration and
Refugee Protection Act (IRPA). Mr. Pay Pay is therefore not in a position where he
can benefit from an administrative stay.
[5]
In the
meantime, the applicant also filed an application for humanitarian and
compassionate considerations (HC) and a PRRA application pursuant to sections
25 and 112 of the IRPA.
[6]
To
summarize, after his HC and PRRA applications were refused, Mr. Pay Pay
asked the removal officer to defer his removal to the United States since he
had filed an application for judicial review in regard to these matters.
Further, he alleges that the removal officer’s decision was discriminatory
because his criminal record was the determinative factor in the refusal of his
application.
[7]
In fact,
he submits that paragraph 230(3)(c) should be inoperative since it
infringes his rights under section 15 of the Canadian Charter of Rights
and Freedoms. He therefore raised a constitutional question on this point
bearing on the removal officer’s refusal to defer his removal to the United
States, namely:
[translation]
. . . that
the regulatory provision lifting the stay of the removal in his case breaches
section 15 of the Charter and articles 7, 9 and 26 of the International
Covenant on Civil and Political Rights.
[8]
This Court
must now decide the three applications for judicial review following this
procedural history.
ANALYSIS
[9]
In order
to conduct a logical analysis of the issues, this Court will address the
matters in the following order:
·
The HC
application;
·
The PRRA
application; and
·
The
removal decision.
[10]
With
regard to the HC application, the standard of judicial review is that of
reasonableness simpliciter (Baker v. Canada (Minister of Citizenship
and Immigration), [1999] 2 S.C.R. 817). Since the constitutional
question is not applicable to such an application and since the officer carried
out a reasonable and logical analysis of the evidence, the officer’s decision
was not unreasonable. The application for judicial review is therefore dismissed.
[11]
With
regard to the PRRA application, it is important to note that this Court finds
the officer’s analysis disturbing on three points in particular, namely:
·
The
officer determined that Mr. Pay Pay lacked a subjective fear of
persecution based on the fact that he had committed a crime. In other words,
the officer determined that causing bodily injury to another person was a
conscious and premeditated choice. This argument has no logical basis;
·
The
officer also decided that based on the status of the applicant’s adoptive
father, the applicant would benefit from more protection. He seems to be
alluding to the fact that the applicant would be at an advantage based on his
adoptive father’s political status. However, there is no analysis about how
this protection would occur. This analysis falls short since the officer
appears to suggest that this protection that his adoptive father is able to
provide could be the protection available because of a criminal association
given his political status;
·
Finally, the
officer’s decision is based on the existence of an internal flight alternative
for Mr. Pay Pay, based on the fact that he is a native of the geographic
area of Kivu. The officer relied on a British report stating that there was in
effect a war in Kivu, a province of the DRC. This same report was silent
however about whether people from Kivu were mistreated in other parts of the
country. It was on this premise that the officer tried to allege that because
the report did not refer to harassment against the people of Kivu elsewhere in
the country, Mr. Pay Pay had an internal flight alternative elsewhere.
[12]
It was on
these three points that the Court decided the issue of whether the application
for judicial review must be allowed.
[13]
When it is
a question of fact, the appropriate standard of review for a PRRA application
is that of patent unreasonableness, see Kim v. Canada (Minister
of Citizenship and Immigration), [2005] F.C.J. No. 540 at
paragraph 19, and Figurado v. Canada (Solicitor General) (F.C.), 2005
FC 347, [2005] 4 F.C.R. 387. The officer’s decision is clearly patently
unreasonable given that he did not consider the test for determining whether
there was an internal flight alternative established by the Federal Court of
Appeal in Thirunavukkarasu v. Canada (Minister of Employment and
Immigration), [1994] 1 F.C. 589 (C.A.). The test stated in this case has
two parts:
·
The
Board must be persuaded that, on a balance of probabilities, the applicant does
not face a serious possibility of persecution in the area which is alleged to
afford an internal flight alternative; and
·
Considering
all of the circumstances, including those of the individual, the internal
flight alternative is such that it is not unreasonable for the applicant to
seek refuge there.
[14]
The
officer did not conduct an analysis of the facts and did not logically assess
the existence of an internal flight alternative. The application for judicial
review with regard to the PRRA application is therefore allowed.
[15]
With
regard to the constitutional question, it should be noted that this is
submitted pursuant to section 57 of the Federal Courts Act. Since
a legal provision is considered valid unless shown to be otherwise, the
applicant must therefore establish why this question must be answered in the
affirmative. The applicant integrated the constitutional issue in the
matter bearing on the officer’s refusal to defer the removal, and is
essentially alleging that there was discrimination with regard to his criminal
record.
[16]
Despite
the applicant’s submissions on this point, this Court is of the opinion that
the constitutional question must be answered in the negative. The fact that
Mr. Pay Pay chose to get behind the wheel in an inebriated state was a
choice. The officer did not base his decision to refuse the applicant’s
requests on an innate characteristic, but rather decided in such a way as to
exclude an administrative stay, see Law v.
Canada (Minister of Employment and Immigration), [1999] 1
S.C.R. 497. There is no discrimination in this situation. An
administrative stay is an effect of the advantage conferred to the Minister so
that the Minister need not assess each applicant’s individual HC circumstances
when the conditions of a country are similar. In this context, the fact that
Mr. Pay Pay is not entitled to an administrative stay is such that he is
in the same class of any other applicant from any other country that does not
benefit from this privilege.
[17]
With
regard to the matter bearing on the removal officer’s refusal to defer the
removal, given the determination that paragraph 230(3)(c) is valid, the
question bearing on its constitutionality in this matter is moot. Further, it
is a well known rule of law among my colleagues’ decisions, as well as my own,
that a removal to the United States, with the possibility of then being removed
to one’s native country, does not amount to irreparable harm, see Hassan v.
Canada (Solicitor General), 2004 FC 564. Therefore, the application for
judicial review is dismissed.
[18]
This Court
nevertheless points out that the issue of Mr. Pay Pay’s removal to the
United States raises a serious issue that the parties should contemplate. The
applicant argues that by removing him to the United States, the United States
is actually an intermediary because he will then be removed to the DRC. In his
opinion, if there is a removal to the DRC, there is therefore the possibility
of obtaining a stay. As stated above, the Court stated on many occasions that
it is speculative to assume that the individual will be removed to his native
country when he is removed to the United States. It is nevertheless just as
easy to argue that it is just as speculative to claim that the same individual
will remain in the United States without any risk of being removed to his
native country. There is no guarantee from the United States that this
individual will not be returned to his country. Further, while Mr. Pay Pay
may submit a PRRA application involving on his country of origin, namely the
DRC, he is not given the opportunity to establish irreparable harm because the
removal is to the United States and not to the DRC.
[19]
It is very
possible that a removal to the Unites States will not result in irreparable
harm, but since the parties have not raised any case law from the Federal Court
of Appeal to that effect, this Court is prepared to have the parties propose
questions to certify on this point of general importance.
[20]
In short,
the application for judicial review bearing on the HC application is dismissed
as well as the application involving the removal officer’s decision refusing to
defer the removal to the United States. With regard to the matter of the PRRA
application, this Court is of the opinion that the officer’s decision is
patently unreasonable and that the application for judicial review should be
allowed. Although this Court answered the constitutional question in the
negative, this Court is nevertheless prepared to certify this question. Since
the parties agreed at the hearing to circulate the reasons, to give them the opportunity
to propose questions for certification, they will have until
June 14, 2006, to submit their questions for certification, by
clearly identifying the matter to which the questions relate, and until June
19, 2006 to respond.
“Sean Harrington”
Judge
Certified true
translation
Kelley A. Harvey, BCL,
LLB
Email this Content