Date:
20100610
Docket:
IMM-2971-10
Citation:
2010 FC 619
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Montréal,
Quebec, June 10, 2010
PRESENT:
The Honourable Mr. Justice Shore
BETWEEN:
ALEJO
MARTINEZ, MARTHA LORENA
Applicant
and
THE MINISTER OF
CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
I. Preliminary remarks
[1]
The
practice of reiterating and submitting new documents or arguments on matters
that have or ought to have been decided by the Refugee Protection Division (RPD)
does not constitute new evidence. In Abdollahzadeh v. Canada (Minister
of Citizenship and Immigration), 2007 FC 1310, 325 F.T.R. 226, the Court
reached the following conclusions:
[27] What Parliament does not want is to have the
PRRA application become a disguised second refugee claim. By limiting the
evidence to new information for a refused refugee claimant’s PRRA application,
it is clearly indicated that the intended objective is to analyze the
application for protection taking into consideration the situation after the
RPD decision, all subject to certain adaptations regarding some earlier
evidence according to the wording of section 113 of the IRPA and the
interpretation given by Sharlow J. and Mosley J.
[28] Bearing in mind what is stated above
regarding paragraph 113(a) of the IRPA and the Raza judgment (supra) of the
Court of Appeal, PRRA application and that he explained in detail his findings
in regard to its probative value (the credibility of the evidence, while considering
the source and the circumstances surrounding the existence of the information,
its trustworthiness, its element of novelty and its high degree of importance).
He did so by taking into consideration not only the date of the information but
also the aspect of novelty or lack thereof with reference to the evidence
before the RPD, the RPD’s findings and whether or not the information was
available at the time of the RPD hearing as well as whether or not it was
reasonable to expect that she present this information to the RPD. An analysis
such as this satisfies the standards contained under paragraph 113(a) of the
IRPA and the Court has no reason to intervene because the PRRA officer’s
decision was reasonable. Officer Perreault considered the relevant information
and he made the appropriate determinations considering the circumstances of the
matter.
[2]
When
assessing irreparable harm, it has often been determined by this Court that one
can take into consideration decisions of the Refugee Protection Division, as
well as determinations that the claimant lacks credibility:
[38] On a motion for a stay of a removal
order, an applicant cannot allege the same risks that were dismissed at the RPD
and PRRA stages.
[2] . . . Moreover, his allegations on
that point are substantially the same as the ones raised when his claim was
before the Immigration and Refugee Board. His allegations— then assessed and
dismissed because they were not credible—cannot be the basis of an allegation
of irreparable harm (see, for example, Akyol v. The Minister of
Citizenship and Immigration, [2003] F.C.J. No. 1182, 2003 FC 931).
(Dimouamoua v.
Canada (Minister of Citizenship and Immigration), 2005 FC 940, [2005] F.C.J
No 1172 (QL).) [Emphasis added.]
(Duran
v. Canada (Minister of Public Safety and Emergency Preparedness),
2007 FC 738, [2007] F.C.J. No 988 (QL)).
II. Legal proceeding
[3]
This
is a motion by the applicant to obtain an order staying her removal from Canada
to Mexico scheduled for June 14, 2010. The motion is joined to an application
for leave and judicial review of the decision by the Pre-Removal Risk
Assessment (PRRA) officer, dated March 23, 2010.
III. Background
[4]
The
applicant, Ms. Martha Lorena Alejo Martinez, is a citizen of Mexico. She
arrived in Canada on February 25, 2008 in Toronto and was admitted as a
temporary resident until March 10, 2008. Ms. Alejo Martinez claimed
refugee protection in Montréal on March 25, 2008.
[5]
On
July 14, 2009, the RPD determined that Ms. Alejo Martinez was neither a
Convention refugee nor a person in need of protection, thereby rejecting her
claim for refugee protection. The RPD further found that there was no credible
basis to the claim.
[6]
On
October 27, 2009, the application for leave and judicial review of the RPD decision
was dismissed by the Federal Court.
[7]
On
March 23, 2010, the PRRA application was dismissed.
IV. Analysis
[8]
The
Court agrees with the respondent’s position.
[9]
In
order to evaluate the merits of the motion to stay, the Court must determine
whether the applicant meets the tests laid down by the Federal Court of Appeal
in Toth v. Canada (Minister of Employment and Immigration) (1988), N.R.
6 (F.C.A.) L.R. (2d) 123, 86 N.R. 302 (F.C.A.).
[10]
In
this proceeding , the Federal Court of Appeal adopted three tests that it
imported from the case law on injunctions, specifically from the Supreme Court
of Canada decision in Manitoba (Attorney General) v. Metropolitan Stores
Ltd., [1987] 1 S.C.R. 110. These three tests are as follows:
A. the
existence of a serious issue;
B. the
existence of irreparable harm; and
C. the
assessment of the balance of convenience.
[11]
The
three criteria must be met for this Court to grant the requested stay. If one
of them is not met, the Court cannot grant the stay.
[12]
The
applicant failed to demonstrate that there was a serious issue to be tried in
her application for leave respecting the officer's decision, that irreparable
harm would result from her removal to Mexico or that her inconvenience would be
greater than that caused to the public interest in ensuring that the
immigration process provided for in the Immigration and Refugee Protection
Act, S.C. 2001, c. 27 (IRPA), follows its course.
A.
Serious issue
[13]
It
is clear from the PRRA decision that the officer conducted a thorough
examination of Ms. Alejo Martinez’s submissions.
[14]
The
officer noted that there was little new evidence in the case and that it was
not his role to reassess evidence that was before the RPD in 2009. The officer
reproduced paragraph 113(a) of the IRPA in his notes. He
summarized them as follows at page 5 of his decision:
[translation]
The
claimants submitted testimony of their respective mothers and of a police
officer who was apparently a colleague of the female claimant’s father, who is
a policeman. [February 5 and 8, 2010.] However, this evidence fails to meet the
requirements set out in paragraph 113(a) of the IRPA. This evidence was
obtained from sources that were not formally identified, at the last minute,
i.e. when their removal became imminent, brings nothing new of any substance, and
appears to be nothing more than adjustments to support their testimony that had
already been found to be not credible by the RPD. The claimants have not
indicated that this evidence was not reasonably available or that they could not
reasonably have been expected to have presented it at the time of the rejection.
../../../GASPARD/IMMIGRATION/PROCEDURE-PLEADING/AUTRE-OTHER/
- occ14#occ14
[15]
The
officer’s assessment is consistent with the case law of this Court.
[16]
../../../GASPARD/IMMIGRATION/PROCEDURE-PLEADING/AUTRE-OTHER/
- occ15#occ15In Abdollahzadeh, above, rendered in December
2007, Justice Simon Noël, echoing the reasons delivered by the Federal Cour of
Appeal in Raza v. Canada (Minister of Citizenship
and Immigration), 2007 FCA 385, 162 A.C.W.S. (3d) 1013, noted that a PRRA
is neither an appeal nor another level of review of the RPD decision:
Very recently, the Court of Appeal rendered a
judgment following the certification of two questions by Mosley J. in regard to
section 113 of the IRPA (see Raza et al. v. MCI, FCA v. MCI, 2007 FCT
385 Madam Justice Sharlow, on behalf of the Court, dismissed the appeal,
adopted the reasoning of Mosley J. (see paragraph 16) and commented on the
content of section 113 of the IRPA (see paragraph 13). She took the time to
state once again that PRRA procedure is not an appeal or an application for
review of the RPD decision given that Parliament clearly intended to limit the
evidence presentable in the context of such a procedure (see paragraph 12).
[Emphasis added.]
[17]
Ms.
Alejo Martinez has not demonstrated that the officer’s factual findings were
unreasonable.
B.
Irreparable harm
[18]
Ms.
Alejo Martinez did not indicate in her affidavit that she feared for her life
if she were to be returned to Mexico.
[19]
In
the case of Kerrutt v. Canada (Minister of Employment and Immigration)
(1992), 53 F.T.R. 93, 32 A.C.W.S. (3d) 621, the Court defined irreparable harm
as returning a person to a country where his or her safety or life would be in
jeopardy. According to the same decision, it cannot be a mere matter of
personal inconvenience or the division of a family.
[20]
In
support of her PRRA application, Ms. Alejo Martinez reiterated the same allegations
as those that had been made before the RPD.
[21]
The
RPD determined that Ms. Alejo Martinez’s account was not credible. Furthermore,
it found that Ms. Alejo Martinez had not rebutted the presumption of adequate
state protection, and had not discharged the burden of establishing that there
was no internal flight alternative open to her.
[22]
Ms.
Alejo Martinez had not demonstrated irreparable harm.
[23]
As
a result, and in the absence of a serious issue to be tried by this Court, the
harm the applicant alleges has not been demonstrated.
C.
Balance of convenience
[24]
In
the absence of serious issues and irreparable harm, the balance of convenience
favours the Minister, who has an interest in having a removal order enforced on
the scheduled date (Mobley v. Canada (Minister of Citizenship and
Immigration), [1995] FCJ No. 65 (QL/Lexis) at paragraph 2).
[25]
In
fact, subsection 48(2) of the IRPA provides that a removal order must be
enforced as soon as it is reasonably practicable.
|
Enforceable removal order
48. (1) A removal order is
enforceable if it has come into force and is not stayed.
Effect
(2) If a removal order is
enforceable, the foreign national against whom it was made must leave Canada immediately and it must be enforced as soon as is reasonably practicable.
|
Mesure de renvoi
48. (1) La mesure de renvoi
est exécutoire depuis sa prise d’effet dès lors qu’elle ne fait pas l’objet
d’un sursis.
Conséquence
(2) L’étranger visé par la
mesure de renvoi exécutoire doit immédiatement quitter le territoire du
Canada, la mesure devant être appliquée dès que les circonstances le
permettent.
|
[26]
Justice
Barbara Reed, in Membreno-Garcia v. Canada (Minister of Employment and
Immigration) [1992] F.C. [1992] F.C.J. No. 535 (QL), discussed the issue of
balance of convenience in regard to a stay application and the public interest
that must be considered:
[18]
What is in issue, however, when considering balance of convenience, is the
extent to which the granting of stays might become a practice which thwarts the
efficient operation of the immigration legislation. It is well known that the
present procedures were put in place because a practice had grown up in which
many cases, totally devoid of merit, were initiated in the court, indeed were
clogging the court, for the sole purpose of buying the appellants further time
in Canada.
There is a public interest in having a system which operates in an efficient,
expeditious and fair manner and which, to the greatest extent possible, does
not lend itself to abusive practices. This is the public interest which in my
view must be weighed against the potential harm to the applicant if a stay is
not granted.
V. Conclusion
[27]
In
light of all the foregoing, the applicant has not satisfied the jurisprudential
tests for obtaining a judicial stay.
[28]
For
all of these reasons, the motion for a stay of the execution of the removal
order is dismissed.
JUDGMENT
THE COURT ORDERS that
the motion for a stay of the removal order made against the applicant be
dismissed.
“Michel
M.J. Shore”
Certified
true translation
Sebastian
Desbarats, Translator
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