Docket: IMM-600-12
Citation: 2012 FC 111
Ottawa, Ontario, January
27, 2012
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
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LOREANNY ARTEAGA BARRERO
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Respondents
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REASONS FOR ORDER AND ORDER
UPON
MOTION dated January 26, 2012 on behalf of the Applicant for an Order to stay
the execution of a removal Order made against her, which is scheduled to be
executed on Monday January 30, 2012, to Colombia, until the Applicant’s
Application for Leave and for Judicial Review, of a negative decision by a
Pre-Removal Risk Assessment [PRRA] Officer (the Officer), dated October 31,
2011, but signed on November 10, 2011, after consideration of additional
evidence adduced;
AND
UPON considering the evidence and the submissions contained in the motion
records submitted by the Applicant and by the Respondents;
AND UPON hearing the oral submissions of counsels by teleconference in Ottawa
on Friday, January 27, 2012;
AND UPON considering the conjunctive tri-partite test set forth in Toth v
Canada (Minister of employment and Immigration), (1988) 86 NR 302 (FCA),
that must be satisfied before a stay of removal can be granted;
ENDORSEMENT
[1] In order to succeed the Applicant must demonstrate that there is a
serious issue to be tried and that there are valid reasons to explain the late
filing of her application for judicial review. In this instance the Applicant
claimed that the Officer made several errors that warrant the intervention of
the Court namely that the new evidence adduced after the hearing held on October
24, 2012, was not considered by the Officer. Applicant also claimed that she never
received a copy of the Officer’s decision and more importantly that, on January
23, 2012, Ms Malenfant, the removal Officer, refused to provide a copy of the Officer’s
decision. The Applicant alleged that this failure constitutes a breach of the
duty of procedural fairness;
[2] Having considered the evidence adduced by the Applicant namely her
affidavit stating that she never received a copy of the decision, and that she
was refused a copy on January 23, and Respondents’ rebuttal namely the
affidavit of Ms Liette Malenfant, the removal Officer, stating that on November
29, she did provide a copy of the PRRA decision to the Barrero family. That
Applicant did request a stay of her removal on January 8, despite the fact that
no date had been set, and further filed a written request for a stay on January
12, 2012. Ms Liette Malenfant denies having refused to see Applicant on January
20 and January 23, 2012, because she was absent from her office when Applicant
tried to see her;
[3] And having considered the additional arguments presented by counsel for
the Applicant at the hearing, the decision of Justice Hughes in Varga v
Canada (Minister of Citizenship and Immigration), FC 2005 1280 [Varga]
and Canada’s obligations as a signatory of the United Nations Convention on
the Rights of the child, and in view of Applicant’s failure to provide
reasons for her late filing;
[4] The Court is not satisfied that the Applicant has demonstrated that
there is a serious issue to be tried. The Court cannot conclude, on the balance
of probabilities, that the Officer, in essence, made a reviewable error in the
treatment of Applicant’s evidence or that he failed to consider all of the
evidence adduced by the Applicant or even that he made adverse credibility
findings. The Court rejects Applicant’s argument based on Varga, as
that decision was overturned by the Federal Court of Appeal. Canada’s
obligation under the United Nations Convention for the Rights of the Child
do not exempt an Applicant from bringing forth a reviewable case and meeting the
tri-partite test in order to obtain a stay. Accordingly, the Court is not
satisfied that the Applicant has raised a serious issue to be tried with respect
to whether the Officer erred;
[5] In short, the Applicant has not raised a serious issue with respect to
whether the Officer’s decision falls “within the range of possible, acceptable
outcomes which are defensible in respect of the facts and the law” (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47) or “fit[s] comfortably with the
principles of justification, transparency and intelligibility” (Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009 ] 1 SCR 339 at
para 59);
[6] The Applicant has not satisfied her burden of establishing that she
faces a risk of irreparable harm if she is removed from Canada.
I note that this conclusion is consistent with the conclusions reached
separately by the Officer and by the Refugee Protection Division of the
Immigration and Refugee Board of Canada, after a careful consideration of all
of the available evidence adduced in support of the applicant’s PRRA and
refugee protection applications;
[7] The fact that the Applicant’s application for Permanent resident status
will become moot is unfortunate, but not sufficient to constitute irreparable
harm, nor is the fact that Applicant’s children are aged respectively one and
two years old. The Court has weighed the evidence submitted by both parties
with respect to the medical condition of the Applicant’s daughter and notes
that proper medical care is available in both Colombia and Venezuela. The separation of families is a harsh consequence of deportation
orders and the jurisprudence of this Court has clearly established that it does
not constitute irreparable harm (see Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81 at para 69;
[8] The Court has also taken into consideration that measures have been
taken to facilitate Applicant bringing her Canadian born children with her
after her stated intention to do so. In that respect, the removal Officer has
postponed the date initially set for removal, thereby permitting Applicant to
obtain the Canadian passports for her Canadian born children. The Court also
notes the removal Officer’s acquiescence to defer the deportation of the
Applicant’s mother initially set for December 23, 2011 to January 30, 2012, to
enable her to travel with the Applicant and her children;
[9] Finally the Applicant was also unable to demonstrate that the balance
of convenience favors a granting of the requested stay by this Court;
[10] In conclusion, the Court is left with no
alternative under the law, in view of the application presented which was
limited to the PRRA Officer’s decision, but to dismiss this motion for a stay.
THIS
COURT ORDERS that this motion for a stay be dismissed.
“André F. J. Scott”
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