Date: 20100312
Docket: IMM-1228-10
Citation: 2010
FC 295
Ottawa, Ontario,
March 12, 2010
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
ANNIKAH
ELLIS
Applicant
and
MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
Applicant applies by Notice of Motion for a stay of the execution of a Removal
Order scheduled for March 14, 2010 until such time as an Application for Leave
and Judicial Review of the deferral refusal decision by the Enforcement Officer
is disposed.
[2]
The
Applicant is a citizen of St.
Vincent and was
born on January 29, 1973. She came to Canada on July 31, 1994 after her mother
requested her sister in Canada take her to escape an abusive
boyfriend.
[3]
The Applicant
overstayed in Canada. The Applicant was taken into
detention on an immigration warrant. When interviewed in detention on November
13, 2009 she signed a waiver - the Statement of No Intention to present an
Application for Pre-Removal Risk Assessment (PRRA).
[4]
The
Applicant secured the services of counsel who requested the Director of GTEC
consent to reversal of the waiver because his client was still afraid of her
abusive boyfriend in St.
Vincent. The
Applicant also requested deferral of her removal. The Director refused to a reversal
of the waiver on February 26, 2010 and, on the same date, the Enforcement
Officer refused the deferral request.
[5]
The test
for granting an order for a stay is set out in Toth v. Canada (Minister of Employment and
Immigration, [1989] 1 F.C. 535 (F.C.A.):
a.
whether
there is a serious question to be determined by the Court;
b.
whether
the party seeking the stay would suffer irreparable harm if the stay were not
issued; and
c.
whether on
the balance of convenience the party seeking the stay will suffer the greater
harm from the refusal to grant the stay.
[6]
The
Applicant deposes the waiver was signed without the full knowledge of its
significance. The Applicant submits this is a serous issue since it affects
her rights under the immigration process.
[7]
Section 160(1) of the
Immigration
and Refugee Protection Regulations, SOR/2002-227 (Regulations) provides an application for protection may be made after the
Department notifies the person an application is possible. An application under
these circumstances provides an automatic stay of the removal pursuant to
section 162 of the Regulations unless, pursuant to section 232(a) of the
Regulations, someone has stated in writing they do not intend to make an
application. A PRRA application may be made at any other time but does not
engage section 162. The Applicant is insisting on being able to make a PRRA
application that engages section 162.
[8]
Section 160(4)
provides that a person is given notification “when the person is given
the application for protection form by hand” or sent to the person by mail at
the last address provided by them.
[9]
In this
case, the Officer says in her affidavit that she keeps a copy of the
application on hand as she explains rights to all detainees “While I’m
explaining all of this I have an actual blank PRRA application in front of me
and I use it to point out key areas of the application”. She does not say she
handed the Applicant the PRRA application as required by the Regulations.
[10]
A serious
issue arises on whether the Applicant received notification. This question in
turn raises an issue of irreparable harm when no pre-removal risk assessment is
conducted or properly waived. In the, circumstances, the balance of
convenience favours the Applicant.
[11]
I
am satisfied a stay should issue until the underlying Application for Leave and Judicial
Review is disposed.
ORDER
THIS COURT
ORDERS that:
1.
Removal
Order scheduled for March 14, 2010 is stayed until the underlying Application
for Leave and Judicial Review is disposed.
"Leonard
S. Mandamin"
Email this Content