Date: 20090428
Docket: IMM-1624-09
Citation:
2009 FC 423
Ottawa, Ontario, April 28, 2009
PRESENT:
The Honourable Mr.
Justice Shore
BETWEEN:
REY
RODRIGUEZ Jorge Luis
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Overview
[1]
The
case law has established that removal officers have limited discretion to defer
a removal by reason of special or compelling circumstances:
[37] It is well-established law that the
discretion to defer a removal is very limited. It would be contrary to the
purposes and objects to the Act to expand, by judicial declaration, a removal
officer's limited discretion so as to mandate a "mini H & C"
review prior to removal (Davis v. Canada (Minister of Citizenship and
Immigration), [2000] F.C.J. No. 1628 at
para. 4 (T.D.) (QL); John v. Canada (Minister of Citizenship and
Immigration) 2003 F.C.J. No. 583 (T.D.) (QL))....
(Adviento v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1430, 242 F.T.R. 295; also, Simoes
v. Canada (Minister of Citizenship and Immigration) (2000), 187 F.T.R. 219,
98 A.C.W.S. (3d) 422 at para. 12; Williams v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 853, 116 A.C.W.S. (3d) 89 at para.
21; Prasad v. Canada (Minister of Citizenship and Immigration),
2003 FCT 614, 123 A.C.W.S. (3d) 533 at para. 32; Griffiths, above).
II. Introduction
[2]
The
applicant, a citizen of Peru, has brought a motion to stay his removal
to that country, which is to take place on April 30, 2009.
[3]
This
motion is joined with an application for leave brought against a decision dated
March 25, 2009, by the enforcement officer refusing an administrative deferral of
the applicant’s removal.
III. Facts
[4]
The
applicant, Jorge Luis Rey Rodriguez, is a citizen of Peru. He, his
former spouse, Rosa Maria Benavides Carrasco, and their two children arrived in
Canada on October
27, 2005, and claimed refugee protection on their arrival.
[5]
Their
claim was rejected by the Refugee Protection Division (RPD) in a decision dated
May 23, 2006.
[6]
The
application for leave and judicial review challenging the RPD’s decision was
dismissed on October 13, 2006.
[7]
On
December 27, 2006, the applicant, his former spouse and their children brought an
application for permanent residence based on humanitarian and compassionate
grounds (H&C).
[8]
The
applicant also brought an application for a pre-removal risk assessment (PRRA),
received by Citizenship and Immigration Canada (CIC) on December 20, 2007.
[9]
The
applicant and his former spouse were divorced on September 11, 2008.
[10]
His
former spouse then married Daniel Paquette, a Canadian citizen. She filed a new
application for permanent residence supported by the sponsorship of Mr.
Paquette.
[11]
The
applicant claims that he has been in a conjugal relationship with a Canadian
citizen, Martha Marcias Pineda, since March 2008.
[12]
The
applicant’s H&C and PRRA applications were refused on December 16, 2008.
[13]
On
February 20, 2009, the applicant brought two applications for leave, one with
respect to the PRRA decision and the other with respect to the H&C
decision.
IV. Analysis
[14]
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), 86
N.R. 302 (F.C.A.)
[15]
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:
· the existence
of a serious question;
· the existence
of irreparable harm; and
· the weighing
of the balance of convenience.
[16]
The
applicant failed to demonstrate that there was a serious question to be tried
in his application for leave respecting the officer’s decision, that irreparable
harm would result from his removal to Peru or that his 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 question
[17]
The
enforcement of a removal order is governed by section 48 of the IRPA:
|
48. (1) A
removal order is enforceable if it has come into force and is not stayed.
(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.
|
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.
(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.
|
[18]
The
case law has established that removal officers have limited discretion to defer
a removal by reason of special or compelling circumstances:
[37] It is
well-established law that the discretion to defer a removal is very limited. It
would be contrary to the purposes and objects to the Act to expand, by judicial
declaration, a removal officer's limited discretion so as to mandate a
"mini H & C" review prior to removal (Davis v. Canada
(Minister of Citizenship and Immigration), [2000] F.C.J. No. 1628 at para.
4 (T.D.) (QL); John v. Canada (Minister of Citizenship and Immigration)
2003 F.C.J. No. 583 (T.D.) (QL))….
(Adviento, above; also, Simoes,
Williams, Prasad and Griffiths, above)
[19]
In
the case at bar, the applicant asked the removal officer to stay his removal on
the grounds that he had two applications for leave and a sponsorship
application pending.
[20]
The
applicant did not demonstrate that he had submitted to the removal officer
evidence that could constitute sufficient justification for the officer to
exercise his discretion, which is limited to deferring the removal by reason
of special or compelling circumstances:
[45] The
order whose deferral is in issue is a mandatory order which the Minister is
bound by law to execute. The exercise of deferral requires justification for
failing to obey a positive obligation imposed by statute. That
justification must be found in the statute or in some other legal obligation
imposed on the Minister which is of sufficient importance to relieve the
Minister from compliance with section 48 of the Act [Immigration Act, R.S.C. (1985),
c. I-2]…. (Emphasis added.)
(Wang v. Canada (Minister of
Citizenship and Immigration), [2001] 3 F.C. 682, 2001 FCT 148)
[21]
The
applicant alleges in his affidavit that his spouse filed a sponsorship
application that is still pending and that he has two applications for leave
pending, one with respect to the H&C decision and the other with respect to
the PRRA decision.
[22]
It
is settled law that an H&C application sponsored by a spouse is not an
impediment to an applicant’s removal (Patterson v. Canada (Minister of
Citizenship and Immigration), 2008 FC 406, 166 A.C.W.S. (3d) 300 at para.
21; Zenunaj v. Canada (Minister of Citizenship and Immigration), 2005 FC 1715, 144 A.C.W.S. (3d) 927; Shchelkanov v.
Canada (Minister of Citizenship and Immigration) (1994), 76
F.T.R. 151, 47 A.C.W.S. (3d) 783; Okoawoh v. Canada (Minister of
Citizenship and Immigration) (1996), 60 A.C.W.S. (3d) 816, [1996]
F.C.J. No. 24 (F.C.T.D.) (QL)).
[23]
A
pending landing application does not raise a serious question. The applicant
may submit an application from outside Canada in the
normal course of the process as a member of the family class.
[24]
In
Canada, spousal applications,
like H&C applications, operate independently of the removal process. They
do not have the effect of halting removals until such applications are
determined. Had this been Parliament’s intention, the legislation would have
provided for a statutory stay of removal once such an application has been
filed (Patterson and Shchelkanov, above).
[25]
The
applicant did not submit any evidence that could constitute justification for
the removal officer to defer the removal.
[26]
There
is no indication in the CIC file on the applicant that the applicant has a pending
sponsorship application.
[27]
As
for the pending applications for leave with respect to the PRRA and H&C
decisions, the IRPA does not provide that the filing of an application for
leave would result in a stay of removal (section 48 of
the IRPA and section 230 of the Immigration and Refugee Protection
Regulations, SOR/2002-227 (Regulations)).
[28]
Moreover,
the applicant did not in any way demonstrate that there is a serious question
concerning these decisions.
[29]
Contrary
to the applicant’s allegations in his written submissions, he was asked by CIC
for an update of his H&C application file. An interview was held in the
presence of the applicant and his counsel on November 25, 2008.
[30]
In
the case at bar, his removal could not be deferred on this basis, given the
specific circumstances.
B. Irreparable
harm
[31]
In
the case at bar, the applicant alleges that he would suffer irreparable harm if
he were to be removed to Peru because of: (1) his potential separation
from his spouse and his spouse’s children; (2) the risk of not being able to
receive adequate care; (3) the risk of facing his assailants.
[32]
The
fact that the applicant will be separated from his spouse is not a sufficient
reason to find that he would suffer irreparable harm if he were removed.
[33]
The
applicant did not in any way demonstrate that he or his spouse would suffer
irreparable harm if he were to be removed to Peru.
[34]
In
addition, there is nothing in the record to demonstrate that the applicant’s
spouse submitted a sponsorship application.
[35]
The following is stated in Malagon v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1068, [2008] F.C.J. No.1586 (QL):
[2] In regard to
upsetting the family and the separation that must be endured by
Ms. Malagon’s spouse, this is not irreparable harm, but rather a phenomena
inherent to removal (Malyy v. Canada (Minister of
Public Safety and Emergency Preparedness),
2007 FC 388, 156 A.C.W.S. (3d)
1150 at paragraphs 17-18; Sofela v. Canada
(Minister of Citizenship and Immigration),
2006 FC 245, 146 A.C.W.S. (3d)
306 at paragraphs 4 and 5; Radji v. Canada
(Minister of Citizenship and Immigration),
2007 FC 100, 308 F.T.R. 175 at paragraph 39). To find
otherwise would render impracticable the removal of individuals who do not have
the right to reside in Canada.
Further, as pointed out in Golubyev v. Canada (Minister of Citizenship and Immigration), 2007 FC 394, 156 A.C.W.S. (3d) 1147 at paragraph 12: irreparable harm is a strict test in which serious
likelihood of jeopardy to the applicant’s life or safety must be
demonstrated.
...
[57] In regard to the family upsets and the
separation that Ms. Malagon’s spouse will have to endure, this is not
irreparable harm, but rather a phenomenon inherent to removal (Malyy, supra;
Sofela, supra; Radji, supra). To find otherwise
would render impracticable the removal of individual who do not have the right
to reside in Canada. Further,
as pointed out in Golubyev v. Canada (Minister of Citizenship and Immigration), 2007 FC 394, 156 A.C.W.S. (3d) 1147 at paragraph 12: irreparable harm is a strict test in which serious
likelihood or jeopardy to the applicant’s life or safety must be
demonstrated.
(Also:
Javier v. Canada (Minister of
Public Safety and Emergency Preparedness), 2007
FC 445, 160 A.C.W.S. (3d) 526 at para. 17 ; Sahota v. Canada
(Minister of Citizenship and Immigration) (2002) FCT 331, 112 A.C.W.S. (3d) 1119 at paras.
5-6; Melo v. Canada (Minister of Citizenship and Immigration) (2000),
188 F.T.R. 39, 96 A.C.W.S. (3d) 278 at paras. 20-21; Saibu v. Canada
(Minister of Citizenship and Immigration) (2002), 2002 FCT 103, 111
A.C.W.S. (3d) 980 at para. 10; Kerrutt v. Canada (Minister of Citizenship
and Immigration) (1992), 53 F.T.R. 93, 32 A.C.W.S. (3d) 621; Calderon
v. Canada (Minister of Citizenship and Immigration) (1995), 92 F.T.R.
107, 54 A.C.W.S. (3d) 316).
[36]
The
applicant alleges that he would receive inadequate care if he returned to Peru.
[37]
The
applicant’s claims in this regard are vague and purely speculative. They are
not in any way supported by the evidence in the record.
[38]
The
applicant claims that if he were to return to his country he would be at risk from
his assailants.
[39]
The
RPD dismissed the applicant’s application for protection. The RPD found that
the applicant had not provided clear and convincing evidence that Peru could not
protect him.
[40]
It
should be recalled that this Court confirmed the reasonableness of the RPD’s
decision by dismissing the application for judicial review of this decision.
[41]
The
applicant’s PRRA application was refused for the following reasons:
a. The officer
emphasized that the applicant’s risk had already been assessed by the RPD,
which found that the applicant was not a Convention refugee or a person in need
of protection;
b. The officer
indicated that the two documents submitted by the applicant were dated prior to
the RPD hearing. He added that the list of the RPD’s exhibits includes an
information laid with the PNP (P-12) and a request for personal guarantees (P-14).
Thus, the officer found that these documents were available at the time of the
RPD hearing and that they do not constitute fresh evidence;
c. The officer
also stressed that these two documents support events that are not new facts in
the record;
d. It has been
established that the applicant was unable to prove that Peru could not
protect him and that he did not take sufficient steps to claim his country’s
protection;
e. The officer
reported that the only new fact presented in his PRRA application concerned the
telephone calls received by the applicant’s mother. However, this fact could
not be taken into consideration to support the applicant’s fear of returning
because, first, this fact was not supported by evidence; second, the applicant
did not claim that these “telephone calls” were threats; and, third, it was
observed that the identity of the individuals who telephoned the applicant’s
mother was unknown;
f.
In
addition, the PRRA officer noted that the government in place when the
applicant was threatened in 2005 was that of Alejandro Toledo, but that Alan
Garcia of the Popular Revolutionary Party Alliance came to power on June 4,
2006. Consequently, there was no further reason to fear assault since the
denunciations were made against the previous government;
g. Finally, the
PRRA officer found that even if corruption and impunity exist in Peru, the
applicant is not directly at risk in his country following this change in
government.
[42]
The
remarks of this Court in this regard are relevant:
[55] The risks of return were already assessed
in two administrative proceedings, by the panel and by the officer, and both
made the same findings. Further, this Court confirmed the reasonableness of the
Board’s decision refusing the ALJR against the Board’s decision. Since the
order of this Court, the situation has not changed, as the PRRA confirmed.
[56] This Court has often held that allegations of risk determined to be
unfounded by both the Board and the PRRA cannot serve as a basis for
establishing irreparable harm in the context of an application to stay (Singh v. Canada
(Minister of Citizenship and Immigration), 2005 FC 145, 137 A.C.W.S. (3d) 156). This principle relative to credibility is adaptable in the
context of the failure to reverse the presumption of state protection.
(Emphasis added.)
(Malagon, above; also, Javier,
above at paras. 15-16)
[43]
The
applicant did not discharge his burden of showing that he would suffer irreparable
harm if he returned to Peru.
C. Balance of
convenience
[44]
Subsection
48(2) of the IRPA imposes the obligation of enforcing removal orders as soon as
is reasonably practicable.
[45]
In
the case at bar, given the lack of a serious question and irreparable harm, the
balance of convenience favours the Minister, who has an interest in the removal
order issued against the applicant being enforced on the date set for it, that
is, April 30, 2009 (Mobley v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 65
(Q.L.)).
[46]
The
case law of this Court also holds that when the balance of convenience is
assessed, the notion of public interest must be taken into account (Membreno-Garcia
v. Canada (Minister of Employment and Immigration), [1992] 3 F.C.
306, 55 F.T.R. 104; Blum v. Canada (Minister of Citizenship and Immigration) (1994), 90 F.T.R. 54, 52
A.C.W.S. (3d) 1099).
[47]
Consequently,
the balance of convenience favours the public interest in ensuring that the
immigration process provided for in the IRPA follows its course.
V. Conclusion
[48]
For
all of these reasons, the motion to stay is dismissed.
JUDGMENT
THE COURT ORDERS that the
motion to stay be dismissed.
“Michel M.J. Shore”
Certified
true translation
Susan
Deichert, LLB
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