Date: 20060619
Docket: IMM-3165-06
Citation: 2006 FC 782
Montréal, Quebec, June 19, 2006
Present:
The Honourable Mr. Justice Shore
BETWEEN:
EMMANUEL
CHIMAOBIM IWEKAOGWO
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
INTRODUCTION
[1]
This is a
motion to stay the enforcement of a removal order issued against the applicant
until a decision has been made on his application for an exemption for a
permanent residence visa on humanitarian and compassionate grounds (hereinafter
the “HC application” or the “application for exemption”) and/or until the final
decision of the Federal Court on his application for leave and for judicial
review.
[2]
The
applicant’s removal to his native country, Nigeria, is scheduled on June 20,
2006.
[3]
This
motion to stay is attached to an application for leave and for judicial review
that was filed with the Federal Court on June 12, 2006, and served on the
respondent on June 15, 2006. In this application for leave, the applicant:
§
Is seeking
a decision from the Court in the nature of mandamus. The applicant alleges
that the respondent omits, neglects or refuses to make a decision regarding his
application for exemption submitted in November 2004 in the immigration matter
bearing file number 5323-2235.
§
Is seeking
to set aside the decision to enforce the removal order by the removal officer
dated June 5, 2006.
[4]
The application
for leave and for judicial review filed by the applicant bears on two different
decisions (refusal to make a decision (mandamus) and enforcement of the
removal order).
[5]
In Gonsalves
v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 588
(QL), Mr. Justice Muldoon states the following:
In this case, there are
two preliminary matters. The first is that the applicant appears to be
challenging two decisions, the appeal division's decision declining
jurisdiction to hear the applicant's appeal and the issuance of the
"danger opinion" itself. Under Section 18.1 of the Federal Court
Act, R.S.C. 1985, Chap. F-7, only one decision may be reviewed on any one
application for judicial review. According to the application for leave and for
judicial review, the impugned decision was that of the appeal division
declining jurisdiction. As a result, the challenge to the danger opinion is
not properly before the Court.
(See also: Tei v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 1902 (QL))
[6]
The
applicant cannot challenge two decisions in the same application for leave.
[7]
In
accordance with subsection 364(3) of the Federal Courts Rules,
SOR/98-106, the applicant had until June 14, 2006, 5:00 p.m. (two business days
before the hearing date), to serve the respondent with his motion record and
the submissions that he intended to raise at the hearing on his stay
application. The applicant chose to serve his motion record on the respondent
on June 13, 2006 at 12:07 p.m. He cannot simply allege in his motion record [translation] “the short time period”
to support his evidence and arguments and reserve himself the right to amend
his claims at the hearing, thereby surprising the respondent who clearly would
not have the opportunity to adequately respond to the applicant’s amended
claims.
[8]
As it
appears from the affidavit of Raymond Dubrule, the applicant has known for many
months that he has no status in Canada and that his removal was imminent.
Specifically, he has known since June 5, 2006, that his removal had been
scheduled for June 20, 2006. Therefore, the applicant has been aware of the
date of his removal more than a week for more than a week and he certainly
cannot allege “a short time period” in a motion to stay and take the respondent
by surprise at the hearing.
STATEMENT OF FACTS
[9]
For a
summary of the facts as well as a description of the applicant’s immigration
file, the respondent refers this Court to the affidavit of Raymond Dubrule,
filed in support of this reply record. This affidavit refers to many relevant
and significant documents in the applicant’s immigration record.
ANALYSIS
[10]
In order
to assess the merits of the motion to stay, this Court must determine whether
the applicant meets the case law requirements as stated by the Federal Court of
Appeal in Toth. v. Canada (Minister of Employment and Immigration), 86
N.R. 302 (F.C.A.), [1998] F.C.J. No. 587 (QL):
(1) there is a serious issue to be
tried;
(2) there is irreparable harm; and
(3) the assessment of the balance
of convenience.
[11]
The three
requirements must be met before this Court grants the stay sought. If a single
one of them is not met, this Court cannot grant the stay sought (Pao v.
Canada (Minister of Citizenship and Immigration), 2005 FC 941, [2005]
F.C.J. No. 1173).
(A) Irreparable harm
[12]
The
notion of irreparable harm was defined by the Court in Kerrutt as being
the removal of a person to a country where his life and his safety are in
danger (Kerrutt v. Canada (Minister of Employment and Immigration),
(1992) 53 F.T.R. 93, [1992] F.C.J. No. 237; Lewis v. Canada (Minister of Citizenship and
Immigration),
2003 FC 1271, [2003] F.C.J. No. 1620 (QL)).
[13]
In
terms of irreparable harm, the applicant alleges (paragraphs 10 to 12 of his
affidavit and paragraph 8 of his submissions) that he still fears
returning to Nigeria based on his fear of being threatened by the Ogboni
organization, which created severe health and stress problems for him.
[14]
This
irreparable harm alleged by the applicant involves exactly the same facts presented
to the RPD, which were determined to lack credibility (see exhibit A).
[15]
These
same facts were also reviewed by the Federal Court, which dismissed the
application for leave and for judicial review of the RPD’s decision (see
exhibit A).
[16]
The
applicant also submitted these same facts in support of his PRRA application.
The officer, after considering the RPD’s analysis, and after proceeding with
his own analysis of the evidence submitted before him, determined that the
applicant had not met his burden of proof, i.e. that he personally would be at
risk in Nigeria.
[17]
The
risks alleged before the RPD as well as before the PRRA officer, all found to
lack credibility and to be deficient, cannot amount to irreparable harm. On
that point, the Court refers to the following cases:
Simply alleging that the persons will
suffer the harm they have claimed in their PRRA applications is not sufficient
for the purposes of the test. I first note that the vast majority of the
affected persons have received the benefit of a number of risk assessments.
Prior to the PRRA decisions, in all cases, the affected persons have been party
to earlier processes under the IRPA.
(Nalliah v. Canada (Solicitor General)
(F.C.), [2005] 3 F.C.R. 210, 2004 FC 1649)
See also:
This Court has held that
where an applicant's account was found not to be credible by the Refugee
Division, this account cannot serve as a basis for an argument supporting
irreparable harm in a stay application . . .
(Akyol v. Canada (Minister of Citizenship and
Immigration),
2003 FC 931 (F.C.), [2003] F.C.J. No. 1182 (QL))
(See also Knyasko v. Canada
(Minister of
Citizenship and Immigration), IMM-3240-06; Ulusoy v. Canada (Minister of Citizenship and
Immigration),
IMM-3277-05)
[18]
With
regard to the health problems and stress alleged by the applicant, they are
supported by a simple general allegation by the applicant in his affidavit and
that allegation is not supported by any evidence, medical or otherwise.
[19]
The
applicant certainly does not establish that his removal to his country will
cause him irreparable harm.
[20]
As
the applicant has not satisfied the irreparable harm requirement, this motion
to stay must be dismissed on that basis alone.
[21]
Nevertheless,
the following can be said on the subject of the serious issue.
(B) Serious
issue
[22]
The
applicant alleges that his former counsel, Ms. Langelier, attempted in vain to
contact CIC to provide additional documents in support of his HC application
and to meet with him in order to discuss the matter (paragraph 3 of the submissions).
[23]
In
response, the respondent refers to paragraph 15 of the affidavit of
Raymond Dubrule, affirming that all of the documents that the applicant filed
as exhibits in support of his motion to stay, including inter alia all
of the correspondence from his former counsel, Michelle Langelier, is in his
immigration record. With regard to the meeting, CIC had no obligation to meet
with his former counsel for his HC application, especially considering the
stage of that application at CIC-Montréal.
[24]
At
paragraph 5 of his submissions, the applicant alleges that the decision does
not respect the application of the principles of natural justice, in
particular because it does not allow the applicant to be heard before his
removal.
[25]
This
argument is far too general and there is no evidence supporting it. This was
the decision of the removal officer. In that case, it need only be said that
the applicant had been entitled to several meetings with the CIC officers
before a removal date was set (see paragraphs 11 to 14 of the affidavit of
Raymond Dubrule). Further, with regard to the right to be heard, the respondent
pointed out that the applicant was able to claim refugee status, file an
application for leave and an application for judicial review (ALJR) against
this decision by the RPD, as well as apply for a PRRA. He exhausted the
recourse available to him by law.
[26]
At
paragraph 6 of his submissions, the applicant alleged that he raised serious
issues, namely that new factors and events arose after the date of the hearing
to raise in his application for leave in this case.
[27]
These
allegations are much too general and they are not supported by any evidence or
information. Therefore, the respondent is unable to respond to the applicant’s
allegations.
[28]
In
his affidavit, the applicant referred to a regional directive and/or policy and
alleged that the CIC had the obligation to assess the risks that he raised in
his HC application before his removal from Canada. He alleged the doctrine of
legitimate expectation and that he expected and is entitled to have the risk
assessment done before his departure.
[29]
Is
it worthwhile to repeat that the applicant was entitled to several assessments
of the alleged risks since he arrived in Canada (RPD, ALJR, PRRA). All of
these assessments were negative. In his HC application, as well as in support
of this motion to stay, the applicant alleges exactly the same facts that were
found to be inadequate and/or to lack credibility for the purposes of
establishing a risk of return to his country.
[30]
The
applicant’s HC application will take its course regardless of his removal.
[31]
The
case law of this Court states that a pending application on humanitarian
grounds does not in itself amount to a serious issue in the context of a stay (Padda
v. Canada (Minister
of Citizenship and Immigration), 2003 FC 1081 (F.C.), [2003]
F.C.J. No. 1353, 2003 FC 1081 (F.C.); Lail v. Canada (Solicitor
General of Canada), IMM-10238-03, January 19 2004 (F.C.); Benitez v.
Canada (Minister
of Citizenship and Immigration), 2001 FCT 1307 (F.C.), [2001]
F.C.J. No. 1802; Adviento v. Canada (Minister of Citizenship and
Immigration), 2003 FC 1430, [2003] F.C.J. No. 1837, 2003 FC
1430)
[32]
With
regard to the applicant’s allegation that the lack of a decision on his HC
application and deportation to his country are contrary to sections 7 and 12 of
the Canadian Charter of Rights and Freedoms, it is well established that the
removal of an inadmissible person or a foreign national is not inconsistent
with the principles of natural justice and that the enforcement of that removal
is not inconsistent with sections 7 and 12 of the Charter (Canada (Minister
of Employment and Immigration) v. Chiarelli, [1992] S.C.R. 711).
[33]
The
applicant has certainly not established that there is a serious issue to be
tried by the Court.
[34]
The
Court also addresses the mandamus procedure since this motion is joined to such
an application.
Mandamus
[35]
A
writ of mandamus is an extraordinary remedy that cannot be
applied except in limited circumstances.
[36]
The
pre-existing conditions for issuing a writ of mandamus are
clearly established in the decision by the Federal Court of Canada in Khalil
v. Canada (Secretary of State), [1999] F.C.J. No. 1093. The Court
reiterated the requirements stated in Apotex Inc. v. Canada (Attorney
General), [1993] F.C.J. No. 1098:
Mandamus is a
discretionary equitable remedy. Before this Court will order a writ of
mandamus, the following criteria, as set out by Mr. Justice Robertson in Apotex
Inc. v. Canada; [See Note 6 below] must be satisfied:
Note 6: [1994] 1 F.C.
742 (C.A.), aff'd [1994] 3 S.C.R. 1100.
(a) there must be a
public legal duty to act under the circumstances;
(b) the duty must be
owed to the applicant;
(c) there must be a
clear right to performance of that duty, and in particular the applicant must
have satisfied all conditions precedent giving rise to the duty;
(d) no other adequate
remedy is available to the applicant;
(e) the order sought
must have some practical effect;
(f) in the exercise of
its discretion, the court must find no equitable bar to the relief sought; and,
(g) on a balance of
convenience, an order of mandamus should issue. [See Note 7 below]
[37]
The
applicant has not satisfied all of these conditions necessary to justify
issuing a writ of mandamus.
[38]
The
fees for the applicant’s HC application were paid on or about
November 17, 2004, (see affidavit of Raymond Dubrule and affidavit of
Suzanne Alary).
[39]
According
to the record, the respondent never refused to act or process the applicant’s
application for exemption and the time period for doing so is not
unreasonable.
[40]
On
that point, this Court refers to the affidavit of Suzanne Alary, establishing
that the processing of the HC application filed by the applicant is following
its course, and that it is completely normal that a decision has not yet been
made since the applicant paid the fees for his application for exemption in
November 2004, about 19 months ago and CPC-Vegreville referred his HC
application to CIC Montréal, on December 19, 2005, about 6 months ago.
[41]
Pursuant
to subsection 25(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27, (IRPA), the Minister may dispense a foreign nation from
the obligation to have a visa exemption based on humanitarian and compassionate
grounds. It is an entirely discretionary process.
[42]
It
is worthwhile to note that the Act or the regulations did not set limits or
specific time periods on the officers in performing their duties in regard to
their determinations on exemption applications based on humanitarian and
compassionate grounds.
[43]
This
Court decided, in Bakhsh v. Canada (Minister of Citizenship and Immigration),
2004 FC 1060, [2004] F.C.J. No. 1281 (QL), on the processing
time for an application pursuant to subsection 25(1) of the IRPA.
In this case the Respondent
concedes that there is a public duty to act and that the duty is owed to the
Applicant. The only contentious issue is whether the delay in performing the
statutory duty is unreasonable. An unreasonable delay in rendering a decision
is generally considered to be an implied refusal to perform the public legal
duty. This Court has held that the following requirements must be met for a
delay to be considered unreasonable:
1. The delay is longer than
the nature of the process required, prima facie;
2. The Applicant and his
counsel are not responsible for the delay; and
3. The authority responsible
for the delay has not provided satisfactory justification. (See Conille v.
Canada (MCI), [1999] 2 F.C. 33 (T.D.).)
With respect to the first of
the three requirements set out above the Respondent concedes that the delay of
almost four years in processing the H&C application is almost twice as long
as would normally be the case. There is little doubt that such a delay is
longer than the nature of the process requires and, I so find. The Respondent
also concedes that the Applicant cannot be faulted for the delay. While the
Applicant admits being responsible seven months of the delay, I agree that,
otherwise, the evidence clearly supports that the Applicant cannot be faulted
for the extensive delay.
[44]
In
another matter decided in July 2004, this Court stated the following:
It is accepted that a writ of
mandamus may issue to compel the performance of a legal duty. Jurisprudence of
this Court has also established that unreasonable delay in performing a
statutory duty may also warrant the issuance of a writ of mandamus. Delay, in
such circumstances, will be unreasonable where it has been longer than the
nature the process requires. The Applicant is not responsible for the delay and
no satisfactory justification has been provided for the delay [See Conille
v. Canada (Minister of Citizenship and Immigration), [1999] 2 F.C. 33].
The Respondent does not
dispute that she has a legal duty to perform, i.e. render a decision on the
Applicant's application for landing. The evidence is also clear that the
Applicant cannot be held responsible for the lengthy delays. The Respondent,
moreover, has not provided any precise explanation for the long delay and simply
pleads that the case is now moving forward.
The unexplained delay by the
Minister of five years since the time of the granting of the exemption, or over
four years since the request for additional information and documents, is
perplexing. On the evidence before me, however, I cannot conclude that the
delay is excessive or inordinate given the nature of the process. For the
reasons that follow, I decline to grant the extraordinary relief sought.
(Khan v. Canada
(Minister of Citizenship and Immigration), 2004 FC 981, [2004]
F.C.J. No. 1202 (QL))
[46]
In
Singh v. Canada (Minister of Citizenship and Immigration), [1998]
F.C.J. No. 585 (QL), this Court determined that the Minister cannot
be held responsible for systemic delays as is clearly the case in this matter:
It
would appear to me that the applicant's application is being duly processed,
given that although his application for permanent residence was filed in June,
1995, it has only been eight months since Security Review received the CSIS
report. In my opinion, this does not place the Minister's actions outside of
the timeframe in subsection 46.04(6) of the Act, which imposes a duty to decide
on the application "as soon as possible". It seems to me that the
delay in this instance is merely a systemic one, and there is no evidence of
unreasonable delay. I would thus follow Justice Muldoon's reasoning in Carrion
v. Canada (M.E.I.), [1989] 2 F.C. 584 (F.C.T.D.), wherein he held that
systemic delays cannot be attributed to the respondent Minister. Again, as
Justice Muldoon states at page 589:
The
Court cannot find, as the applicant's counsel urges, that the Minister is
delaying or declining to perform any legal duty. It is trite law that such a
finding is a prerequisite for mandamus. [. . .]
[47]
Considering
the foregoing, the time that elapsed before a decision was made on the
applicant’s HC application is not unreasonable and, accordingly, issuing a writ
of mandamus is not justified.
[48]
The
applicant has not established that there is a serious issue to be tried.
(C) Balance of convenience
[49]
Subsection
48(2) of the Act provides that a removal order must be enforced as soon as
circumstances so allow (Mobley v. M.C.I., IMM-106-95, January 18, 1995).
[50]
The
Court of Appeal developed the issue of the balance of convenience in the matter
of stays and of public interest which must be taken into consideration:
(iii)
Balance of convenience
Counsel says
that since the appellants have no criminal record, are not security concerns,
and are financially established and socially integrated in Canada, the balance
of convenience favours maintaining the status quo until their appeal is decided.
I do
not agree. They have had three negative administrative decisions, which have
all been upheld by the Federal Court. It is nearly four years since they first
arrived here. In my view, the balance of convenience does not favour delaying
further the discharge of either their duty, as persons subject to an
enforceable removal order, to leave Canada immediately, or the Minister's duty
to remove them as soon as reasonably practicable: IRPA, subsection 48(2). This
is not simply a question of administrative convenience, but implicates the
integrity and fairness of, and public confidence in, Canada's system of
immigration control.
(Selliah v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 261, [2004]
F.C.J. No. 1200)
(See also: Atwal v. Canada (Minister
of Citizenship and Immigration), 2004 FCA 427, [2004] F.C.J. No. 2118 (QL);
Dasilao v. Canada (Minister of Citizenship and Immigration), 2004 FC
1168, [2004] F.C.J. No. 1410 (QL))
[51]
In
this case, the applicant was able to file a refugee claim, to file an
application for leave and for judicial review against this decision by the RPD.
Further, he was able to make a PRRA application. He exhausted the recourse
allowed by law.
[52]
The
balance of convenience is therefore in favour of the respondent.
CONCLUSION
[53]
For
all of the above-mentioned reasons, this motion to stay is dismissed.
JUDGMENT
THE COURT ORDERS that the motion to stay the
enforcement of the removal order be dismissed.
“Michel M.J. Shore”
Certified
true translation
Kelley
A. Harvey, BCL, LLB
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