Date: 20090528
Docket: IMM-2412-09
Citation: 2009 FC 556
BETWEEN:
CASSANDRA GRIFFITH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
Docket: IMM-2451-09
BETWEEN:
SHAWN FORDYCE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
ORDER
Lemieux J.
Introduction
and Background
[1]
On
Friday evening, May 15, 2009, I heard together two applications for a stay of
the Applicants who are citizens of Guyana, whose deportation was scheduled for
the next day, Saturday, May 16, 2009, at 10:00 a.m. I issued the two stays and
here are the reasons why.
Facts
[2]
Cassandra
Griffith is 18 years old and Shawn Fordyce is 25 years old. They are cousins.
They arrived at Pierre Elliott Trudeau Airport on May 9,
2009 on false St.
Lucia
passports provided by a smuggler. No entry visa into Canada was necessary with
a passport from St. Lucia but was required if the person held a Guyanese
passport.
[3]
Each
of them saw a different Custom Officer who referred them for questioning by an Immigration
Officer who suspected their passports were false. After initially lying about
the authenticity of their passports and about not knowing each other, they admitted
their passports were false, that they were citizens of Guyana and were
cousins.
[4]
At
this point Miss Griffith told the Officer she was scared to return to Guyana. The Officer
asked why. In her affidavit in support of the stay, she says she did not answer
because she “felt too ashamed and embarrassed to say to the hearing of everyone
in the interview room that my stepfather was sexually abusing me”. In her
affidavit she states her stepfather is rich and powerful.
[5]
For
his part, Mr. Fordyce, in his affidavit in support of the stay, says the
Officer asked him if he was claiming “Refugee Protection”, to which he answered
no because he did not understand the term refugee to be synonymous with
“asylum”. In his affidavit, he says he is under threat from his rich and
influential stepfather, who eventually pulled a gun on him when he tried to
intervene when his stepfather was abusing his mother.
[6]
The
Officer wrote separate section 44 reports to the Minister’s delegate at the
airport. He recommended an exclusion order be issued against each Applicant.
Before the Minister’s delegate issued the exclusion orders, he specifically
asked each of the Applicants whether they wanted to claim Canada’s protection
and each answered “no”. Both were immediately detained and were told they would
be returned to Guyana, via St. Lucia, the next Saturday, May
16, 2009.
[7]
In
her affidavit, Miss Griffith says, after the exclusion order was made, she
“afterwards … asked for protection in Canada and my counsel then ….
also made a formal request to CBSA for an administrative stay of removal”. She
refers to Exhibit “A” of her affidavit which is a letter from her former
counsel, dated May 13, 2009, to CBSA Montreal, requesting an administrative
stay stating he was seeking leave and judicial review in respect of the exclusion
order; he also asked to receive a Pre-Removal Risk Assessment (PRRA)
application and to grant her a stay pending the decision by the PRRA Officer.
[8]
Mr.
Fordyce is more direct in his affidavit. At paragraph 7, he states that on May
13, 2009 he was interviewed by an Immigration Officer “where I then asked for
protection in Canada”, which was
denied. He refers to Exhibit A-1 to his affidavit which is a letter from
current counsel
Mr. Amana, dated May 13, 2009,
faxed to the CBSA Supervisor in Montreal,
the CBSA Hearing Officer and Enforcement Officer. That letter is marked urgent.
Mr. Amana writes his client is afraid to go back to Guyana because of risks to his life and risks
to cruel and inhuman treatment and punishment. Mr. Amana recognizes Mr. Fordyce
may not have asked for Refugee Protection ab-initio “but he is still
entitled to a PRRA as so long as he alleges a risk of return before removal”.
He asked for an answer the next day, May 14, 2009, before 5:00 p.m. as the
removal was scheduled for May 16th. No answer was received. On May
14, 2009, an application for leave and judicial review was filed by Mr.
Amana, attacking the decision of the Immigration Officer in refusing to give
Mr. Fordyce a PRRA assessment application before his removal. On May 15,
2009, Mr. Amana launched Mr. Fordyce’s stay application.
[9]
The
record before me indicates that, on May 13, 2009, Miss Griffith’s former
counsel filed an application for leave and judicial review challenging the
exclusion order. That record also indicates, on May 13, 2009, Mr. Amana
advised CBSA he
was Miss Griffith’s new solicitor on the file. On May 15, 2009, he also
launched a stay application on her behalf. His notice of motion focuses on the
fact her former counsel asked for an administrative stay pending a PRRA
assessment, which the Officer has neglected or omitted to grant. Mr. Amana
states, in making his decision, the Officer denied the Applicant the right to a
due process available at law – a right to a Pre-Removal Risk Assessment since
the Applicant
had alleged a risk of return.
The Statutory Scheme
[10]
The
Immigration and Refugee Protection Act (IRPA) is clear on the
following points:
1. Subsection
44(1) of the IRPA provides an Immigration Officer who is of the opinion
a foreign national in Canada is inadmissible may prepare a report to the Minister
(or his delegate) with subsection 44(2), stating if the Minister is of the
opinion the report is well founded, the Minister may make a removal order in
the circumstances provided for in the Regulations.
2. Paragraph
228(1)(c)(iii) of the Immigration and Refugee Protection Regulations (IRPR)
stipulates the Minister shall not refer for hearing to the Immigration Division
a well founded section 44 report in the case of a foreign national who does not
hold a required visa, but rather shall make an exclusion order.
3. Subsection
99(3) of IRPA bars a person inside Canada from making a refugee claim if that person
is subject to a removal order.
4. Section
166 of IRPR is entitled: “Application
at port of entry”. It says: “An
application for protection by a foreign national against whom a removal
order is made at a port of entry as a result of a determination of inadmissibility
on entry into Canada must, if the order is in force, be received as soon
as the removal order is made. … For greater certainty, the application does not
result in a stay of the removal order.”
Analysis
[11]
It
is trite law an Application for a stay of a removal order must establish three
conjunctive elements: (1) serious issue to be tried; (2) irreparable harm; and,
(3) balance of convenience.
a) Serious issue
[12]
Counsel
for the Applicants argued a serious issue arises because, under section 112 of IRPA,
a person in Canada other than a
person referred to in subsection 115(1) may, in accordance with the Regulations,
apply to the Minister for protection if they are subject to a removal order
that is in force.
[13]
The
PRRA scheme, under IRPA, is to the effect, a risk assessment should be
conducted before a removal is enforced. Sections 160 and 166 of the IRPR
pose a particular challenge when the expulsion order is made at a point of
entry.
[14]
There
is no evidence before me the Applicants were offered the opportunity to make a
PRRA application which is a different process than making a refugee claim.
[15]
Miss
Griffith apparently told the Immigration Officer she was scared to return to Guyana, but failed to say why when
asked by the Immigration Officer. Ms. Griffith, who is only 18 years old
alleges sexual abuse over a two year period, understandably has guilt feelings.
[16]
In any
event, counsel for the Applicant specifically asked for PRRA evaluation on May
13, 2009. It appears from a letter dated May 14, 2009, which is not in the
record, faxed to former counsel for Miss Griffith, an official at CBSA or CIC
said a PRRA application could be made but removal would not be deferred.
[17]
I see the
following serious issues arising out of the application for leave:
1.
In
the circumstances of this case, was there a breach of section 166 of the IRPR
when the Applicants were not offered a PRRA application?
2.
Were
the expulsion orders reasonable in the circumstances particularly in the case
of Miss Griffith, who seemingly stated she was afraid of returning to Guyana?
3.
In
the circumstances of this case, did the authorities act precipitously in
scheduling their return for the following Saturday considering they were going
to be detained and did this action cause them to deny the Applicants specific
request for PRRA applications?
b) Irreparable harm
[18]
In
my view, irreparable harm has been met and is not speculative. The irreparable
harm flows from the fact the Applicants have not had their risk of return
assessed. In the normal course, such return without a risk assessment is a
breach of the statutory scheme laid out in IRPA.
[19]
Having
said this, I am very aware that the Applicants’ individual stories may be
completely fabricated, but I am not in a position to assess their credibility.
That is the task of a PRRA Officer, who will interview them.
c) The balance of convenience
[20]
In
the circumstances, the balance of convenience favours the Applicants.
[21]
A
copy of these reasons is to be placed in each file.
“François Lemieux”
_________________________________
Judge
Ottawa, Ontario
May 28,
2009
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