Date:
20120905
Docket: IMM-8701-12
Citation: 2012 FC 1051
Toronto, Ontario, September 5, 2012
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
|
|
ATTILA
TOTH
|
|
|
|
Applicant
|
|
and
|
|
|
THE
MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR ORDER
[1]
The applicant brought a motion, on short notice,
for an Order staying his removal from Canada. The motion was heard late in the
morning on Friday, August 31, 2012. The applicant was scheduled for removal to
Hungary at 6:40 p.m. that evening. An Order dismissing the motion issued mid
afternoon. These are the reasons for dismissing the stay motion.
[2]
The applicant is a Hungarian Roma. He entered Canada on May 14, 2009, and made a claim for refugee protection. He claimed that he had
been and would continue to be persecuted in Hungary because he is Roma. The
Refugee Protection Division of the Immigration and Refugee Board [RPD] rejected
his claim on October 5, 2011, finding that he had failed to rebut the
presumption of state protection. An application for leave and judicial review
of that decision was dismissed by this Court on February 7, 2012.
[3]
As a consequence of the dismissal of his leave
application, the statutory stay that had been in effect by virtue of section
231(1) of the Immigration and Refugee Protection Regulations,
SOR/2002-227 [the Regulations] ended and the removal order against him could
then be enforced.
[4]
Section 160(1) of the Regulations provides that
an applicant may apply for protection under section 112(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] after he or she is “given
notice to that effect by the Department.” It is a condition precedent to a
failed refugee claimant applying for protection that the Department has given him
or her that notice. The protection referenced in these provisions is the
Pre-Removal Risk Assessment [PRRA]. No PRRA notification was given to the
applicant and therefore he was unable to submit an application for a PRRA.
[5]
On August 16, 2012, the applicant was served
with a direction to report for removal on August 31, 2012. On August 21, 2012,
he requested a deferral of his removal to Hungary. The basis of the deferral
request was as follows:
As our client was
eligible to be served with a PRRA between February 7th, 2012, and
the coming into force of the statutory changes, we submit that you were under
the obligation to notify him of his right to the PRRA.
Therefore, we ask
that you serve the client with PRRA, and submit that until you do so, our
client is not removable until the conditions set out in R. 232 of the IRPA are
fulfilled. …
We therefore ask that
you suspend the removal of the applicant until such time that you serve our
client with a PRRA application in the manner prescribed in 160(4) of the IRPA.
[6]
The “statutory changes” referenced in the
deferral request are the amendments to IRPA that resulted from the coming into
force on July 29, 2012, of the Balanced Refugee Reform Act, SC 2010, c 8
[BRRA].
[7]
The BRRA made significant changes to the PRRA
process. The one that impacts the applicant is the amendment of IRPA to
include a provision that no person subject to a removal order may apply for a
PRRA if the removal occurs within 12 months of the person’s negative refugee
determination. Section 112(2)(b.1) of IRPA now provides as follows:
|
112. (2) Despite subsection (1), a
person may not apply for protection if
…
(b.1) subject to subsection (2.1), less
than 12 months have passed since their claim for refugee protection was last
rejected — unless it was deemed to be rejected under subsection 109(3) or was
rejected on the basis of section E or F of Article 1 of the Refugee
Convention — or determined to be withdrawn or abandoned by the Refugee
Protection Division or the Refugee Appeal Division;
|
112. (2) Elle n’est pas admise à demander
la protection dans les cas suivants :
…
b.1) sous réserve du paragraphe (2.1), moins
de douze mois se sont écoulés depuis le dernier rejet de sa demande d’asile —
sauf s’il s’agit d’un rejet prévu au paragraphe 109(3) ou d’un rejet pour un
motif prévu à la section E ou F de l’article premier de la Convention — ou le
dernier prononcé du désistement ou du retrait de la demande par la Section de
la protection des réfugiés ou la Section d’appel des réfugiés;
|
[8]
The enforcement officer who denied the
applicant’s deferral request did so for three reasons.
[9]
First, the officer noted that because of the
coming into force of the BRRA on June 29, 2012, and because the applicant’s
refugee claim was rejected on October 5, 2011, the applicant “is statutorily
prohibited from applying for a pre-removal risk assessment at this time.” The
applicant would not be eligible for a PRRA until October 5, 2012. In other
words, the applicant cannot currently be served “with a PRRA application in the
manner prescribed in 160(4) of the IRPA” as was requested by him in his
deferral request.
[10]
Second, the officer noted that although the
applicant could have been notified of his right to a PRRA in the period between
February 7, 2012 and June 29, 2012, if he had been so notified and had
submitted a PRRA application, then pursuant to operational Bulletin 440-E dated
August 15, 2012, his PRRA “application would be null and void” and closed by
Citizenship and Immigration Canada. The relevant provisions of that bulletin
read as follows:
Effective August 15,
2012, Citizenship and Immigration Canada (CIC) will begin to retroactively
close existing Pre-Removal Risk Assessment (PRRA) applications for which the
12-month bar applies…
…
CIC is to close all
PRRA applications that are currently in its inventory for which the 12-month
bar applies.
[11]
Third, the officer notes that no new risk to the
applicant is alleged:
I further note that
as an Inland Enforcement Officer, my discretion is extremely limited, and it is
not within my authority to assess the merits of a decision made by the RPD or
PRRA officer, though I may assess whether removal at this time would expose the
applicant to risk of death, extreme sanction, or inhumane treatment. I find it
important to note that counsel has advanced no allegations of risk to Attila
Toth to risk of death, extreme sanction, or inhumane treatment.
[12]
The applicant acknowledges that because the
decision under review is a decision of an enforcement officer not to defer
removal, the test of serious issue is not whether the issue is one that is not
frivolous or vexatious but is whether the applicant has shown a “likelihood of
success on the underlying application:” Wang v Canada (Minister of
Citizenship and Immigration), [2001] 3 FC 682 [Wang].
[13]
In the applicant’s written memorandum, the
principal submission as to the serious issue was the same as had been made to
the deferral officer; namely that his right to a PRRA had been breached by the
respondent. It was argued that there was an obligation on the Minister to
notify the applicant of his right to a PRRA prior to June 29, 2012, when the
BRRA came into effect. This submission was not pursued in oral argument. In
any event, I do not accept that there was any such obligation to provide the
notification before the BRRA amendments came into force. I agree with the
respondent that the factors an officer must consider before initiating the PRRA
process, as set out in section 18 of the Enforcement Manual (ENF-Removals), are
numerous and varying in nature. I also agree with the respondent that other
than the general statement in section 48 of IRPA that a removal order is to be
“enforced as soon as reasonably practicable” there is nothing specifically
directing when a PRRA notification is to be given. I note that there was no
evidence that there had been any deliberate delay in providing the PRRA
notification.
[14]
The serious issue the applicant pursued in oral
argument, and briefly mentioned in the written memorandum, as it was put by the
applicant at the hearing, is whether section 112(2)(b.1) of IRPA is
constitutionally valid.
[15]
The applicant submits that he is likely to
succeed, on the merits of the judicial review application, in establishing that
the removal of the PRRA process from a failed refugee claimant in the 12 month
period following the negative refugee determination is unconstitutional because
the denial of the PRRA is contrary to Canada’s international obligations and an
applicant’s Charter rights.
[16]
The applicant points to and relies upon the
objective and purposes of the PRRA procedure as set out by the Minister in PP 3
– Pre-Removal Risk Assessment (PRRA) which reads as follows:
The policy basis for assessing risk
prior to removal is found in Canada’s domestic and international commitments to
the principle of non-refoulement. This principle holds that persons should
not be removed from Canada to a country where they would be at risk of
persecution, torture, risk to life or risk of cruel and unusual treatment or
punishment. Such commitments require that risk be reviewed prior to removal.
PRRA has the same protection
objectives as the refugee determination process at the Immigration and Refugee
Board of Canada (IRB). It is based on the same grounds and confers the same
degree of refugee protection, except in cases described in A112(3). PRRA
responds to Federal Court jurisprudence, which requires that an assessment be
made for persons who allege risk upon removal. It also responds to Supreme
Court jurisprudence, which suggests that everyone, including serious criminals
and persons who pose a threat to national security, are entitled to a risk
assessment.
…
PRRA is found in Division 3 of Part 2
of the Immigration and Refugee Protection Act (IRPA), and assists in
ensuring that Canada’s immigration and refugee protection system meets its international
obligations, as well as those under the Canadian Charter of Rights and
Freedoms.
PRRA applications – except those of
persons described in A112(3) – are considered on the same consolidated
protection grounds considered by the IRB. These grounds consist of the those identified
in: the Geneva Convention relating to the Status of Refugees; the United
Nations Convention against Torture and Other Cruel, Inhumane or Degrading
Treatment or Punishment (‘Convention against Torture’); as well as
risk to life or risk of cruel and unusual treatment or punishment, as provided
in the IRPA.
[17]
The applicant also relies heavily on the
decision of the Supreme Court in Suresh v Canada (Minister of Citizenship
and Immigration), 2002 SCC 1 [Suresh] in support of his submission
that it is likely that section 112(2)(b.1) of IRPA is constitutionally invalid.
[18]
First, I note that the facts in Suresh
are fundamentally different than those here. Mr. Suresh had been admitted to Canada and had been recognized as a Convention refugee in 1991. In 1995, when he applied
for landed immigrant status, the government detained him and commenced
proceedings to deport him to Sri Lanka on the basis that he was a member of the
Liberation Tigers of Tamil Eelam, an organization engaged in terrorism. The
Supreme Court found that Mr. Suresh had “made a prima facie case showing a
substantial risk of torture if deported to Sri Lanka and that his [deportation]
hearing did not provide the procedural safeguards required to protect his right
not to be expelled to a risk of torture or death.”
[19]
In this case, I cannot find that the applicant
has made a prima facie case of risk to life or risk of cruel and unusual
treatment or punishment. As was noted by the officer, no
allegation of risk was made in the deferral request.
[20]
In this motion, the applicant, filed an
affidavit at the hearing, attached to which were news articles from 2012, some
of which could have been filed with the deferral request, relating to the
treatment of Roma in Hungary and the abhorrent conduct of the neo-Nazi
organizations there. The Minister objected to the late filing of this
evidence. I have reviewed these reports but find that they do not assist the
applicant.
[21]
The applicant’s refugee claim was rejected based
on a finding that he had failed to rebut the presumption of state protection in
Hungary, not that he had not suffered discrimination and objectionable
treatment because he was Roma. The articles do recount further instances of
objectionable conduct, some of it directed to Roma, and some articles do
suggest that the police, on occasion, turn a blind eye to the actions of these
neo-Nazis. However, I am unable to conclude from these reports that the
applicant has made a prima facie case that he would be personally at risk in Hungary and that state protection would be inadequate.
[22]
Second, the situation faced by the applicant
differs from that of Mr. Suresh because Mr. Suresh had not had any assessment
made of the risk of torture or to life that he was then alleging he would be
facing. The applicant here has alleged no new risk. The risk alleged is the
same as was considered and rejected by the RPD; and that assessment was made
within the last ten months.
[23]
Further, what Suresh teaches is that it
is the assessment of an alleged risk that is required; it does not teach how it
is to be assessed. I agree with the submission of the Minister that there are
mechanisms available to assess risk other than a PRRA; the refugee
determination process is one such a mechanism. A request for a deferral of
removal is another. In Wang, Mr. Justice Pelletier, as he then was,
wrote: “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 [emphasis added].” This
observation, among others, was endorsed by the Court of Appeal in Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81. If there
is evidence of changed circumstances of an applicant or of changed conditions
within the country to which the applicant is being removed, such that the applicant faces a new or increased risk that has not been
previously assessed, or the protection of the state has been compromised, then
the enforcement officer must assess that risk and determine if a deferral of
removal is warranted.
[24]
If there is clear and convincing evidence
presented in a deferral request that an applicant’s circumstances have
materially changed or the conditions in the country of removal have altered for
the worse such that a failed claimant faces a real risk of harm and inadequate
protection, then that applicant may persuade a judge of this Court that he is
likely to succeed on judicial review of the rejected deferral request.
Alternatively, he may convince a judge that he has a prima facie case that his
removal will deprive him of his right to liberty, security and perhaps life as
protected by section 7 of the Charter. But neither possible avenue
entails that the limitation on the right to a PRRA as found in section
112(2)(b.1) of IRPA is constitutionally invalid. The fact that an applicant
who is prevented from accessing the PRRA process due to the 12 month bar has
these other alternatives available to him strongly suggests, in my view, that
section 112(2)(b.1) of IRPA is not invalid.
[25]
For these reasons, I find that the alleged
constitutional invalidity of section 112(2)(b.1) of IRPA is not an issue that
is likely to succeed on judicial review, and accordingly the applicant has not
established a serious issue upon which to grant an Order staying his removal.
[26]
Further, I find that irreparable harm has not
been established. The harm alleged by the applicant was the harm he would
suffer from his deportation taking place prior to the constitutionality of
section 112(2)(b.1) of IRPA being determined by a court of law. The
irreparable harm claimed was the alleged breach of his constitutional
protections. For the reasons given, I am of the view that it is not likely to
be found that the impugned section is invalid and therefore it is not likely
that any right of the applicant will be breached if he is removed now. The
applicant’s alleged irreparable harm is therefore speculative. It has not been
proven likely to occur based on clear and convincing evidence.
[27]
The public interest in the effective
administration of the immigration regime, in the circumstances before the Court
in this motion, outweighs the applicant’s personal interest in remaining in Canada. I can find no public interest in the applicant remaining in Canada pending the final determination of his application for leave and judicial review of
the denied request to defer removal.
[28]
Accordingly, and for these reasons, this motion
for a stay of removal was dismissed.
"Russel W. Zinn"
Email this Content