Date: 20090131
Docket: IMM-400-09
Citation: 2009 FC 110
Montréal, Quebec, January 31,
2009
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
PETRO
PETROVYCH
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY
PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1]
In
its consideration of a stay of removal application, the Court is under
obligation to determine whether the applicant’s position, in regard to serious
issue, irreparable harm and balance of convenience is clear, doubtful
or non-existent.
[2]
Recognizing
that granting a stay is an exceptional measure, the weight given to the
evidence of both sides must be carefully scrutinized. It is this scrutiny that
allows the Court to formulate a narrative, inasmuch as possible, by which to
answer the tri-partite Toth test (Toth v. Canada (Minister of Employment
and Immigration.)
(1988), 86 N.R. 302 (F.C.A.)
Judicial Procedure
[3]
This
is a motion for a stay of removal of the applicant, scheduled for Sunday, February 1, 2009.
Background
[4]
On
December 4, 1998, the applicant was granted a visitor visa by the Canadian visa
post in Kiev, Ukraine, which was
valid until June 9, 1999.
[5]
The
applicant entered Canada on December 10, 1998.
On October 13, 1999, the applicant made a refugee claim. The applicant’s
refugee claim was denied, and the decision was sent to him by mail on January
26, 2001.
[6]
On
February 21, 2001, the applicant filed an Application for Leave and for
Judicial Review of the negative Refugee Protection Division decision. Leave was
dismissed on June 6, 2001.
[7]
The
applicant failed to report for a removal interview on August 19, 2002, and a
Warrant for Arrest was issued on August 20, 2002.
[8]
The
applicant was arrested on August 27, 2004, and detained. Subsequently, the applicant
was released on a $3,000.00 cash bond, and other terms and conditions.
[9]
On
November 1, 2004, the applicant made a Humanitarian and Compassionate (H&C)
application, without a sponsor.
[10]
The
applicant was found eligible to make a Pre-Removal Risk Assessment (PRRA) application
on November 15, 2004. The PRRA application was received on November 30, 2004.
The PRRA application was denied on May 11, 2005, and the negative PRRA decision
was served on the applicant in person on July 11, 2005.
[11]
On
July 21, 2005, the applicant filed an Application for Leave and for Judicial
Review of the negative PRRA decision, along with a motion for a stay of his
removal. The motion for a stay of removal was heard and dismissed by Madam
Justice Snider on August 3, 2005. A search of the Federal Court website
indicates that on August 4, 2005, the applicant filed a Notice of
Discontinuance of his application, challenging the negative PRRA decision.
[12]
The
applicant subsequently failed to report for his second removal on August 4,
2005. On August 10, 2005, a Warrant for Arrest was issued.
[13]
On
July 12, 2007, the applicant’s H&C application was reviewed and was
transferred to the PRRA unit for a risk assessment, as the applicant had raised
the same risk allegations he alleged in his PRRA application. The H&C
application remains pending at the PRRA unit.
[14]
The
applicant was arrested on January 24, 2009, and detained. Detention was
recommended until his removal from Canada is confirmed. Removal arrangements were made
and he was served personally with a Direction to Report for removal on January
24, 2009, for a flight scheduled on February 1, 2009.
[15]
On
January 29, 2009, a translator employed by the applicant’s new counsel attended
at GTEC and spoke to the Enforcement Officer with carriage of the applicant’s case.
She asked the Enforcement Officer to defer the applicant’s removal until a
decision on the outstanding H&C had been rendered. There is no evidence
that this translator was authorized to act on behalf of the applicant, and no
such authorization seems to have been presented to the Enforcement Officer.
There is also no evidence that the translator provided the Officer with any
evidence to support the applicant’s request. The Officer indicated that the applicant
could make a request in writing which would be considered in a timely manner
before his removal.
[16]
On
January 30, 2009, the applicant filed an Application for Leave and for Judicial
Review of a refusal to defer removal, together with a motion for a stay of his
removal.
Issue
[17]
Has
the applicant satisfied all three prongs of the conjunctive test for a stay?
Analysis
[18]
The
test for the granting of an order staying execution of a removal order is:
a.
whether
there is a serious question to be determined by the Court;
b.
whether
the party seeking the stay would suffer irreparable harm if the stay were not
issued; and
c.
whether on
the balance of convenience the party seeking the stay will suffer the greater
harm from the refusal to grant the stay.
(See: Toth, supra; R.J.R.-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311)
[19]
The
test for a stay is conjunctive and the applicant must therefore satisfy each
branch of this tri-partite test.
Serious Issue
[20]
This
is not the applicant’s first motion for a stay of removal. According to the
Federal Court’s electronic docket system, on July 21, 2005, the applicant made
two motions to this Court requesting a stay of his removal pending applications
for judicial review of his negative PRRA decision and a refusal to defer
removal. These motions were heard and dismissed by the Honourable Madam
Justice Snider on August 3, 2005. The Court file numbers for those applications
were IMM-4414-05 and IMM-4413-05.
[21]
In
her Order, Justice Snider stated that no serious issue was raised by the
Enforcement Officer’s decision not to defer removal, due to the fact that the applicant’s
H&C was not filed in a timely manner. Justice Snider also found that the applicant’s
allegations of harm were not supported by any evidence and that the applicant’s
conduct was such that the balance of convenience favoured the respondent.
[22]
The Court’s
endorsement of the Order states:
The balance of
convenience does not favour the Applicant. He failed to report for his removal
interview in August, 2002. He failed to notify CIC of his whereabouts. A
warrant was issued for his arrest and was outstanding for 2 years when he was
finally detained on another matter. In these circumstances, the public interest
in promoting respect for Canada’s immigration laws, and in executing removal orders as soon
as practicable outweighs the interest of the Applicant. (Petrovych v. The Minister of
Citizenship and Immigration, (3 August, 2005) Ottawa IMM-4413-05,
IMM-4414-05 ).
The applicant failed to report for removal
[23]
A
warrant was issued for his arrest on August 10, 2005; it was only executed on
January 24, 2009 after an investigation. The applicant has been detained as a
flight risk since this time, pending his removal.
[24]
The
applicant’s misconduct in this case is serious, and it is compounded by the
fact that he has made no mention of it in his stay motion record.
[25]
The
Court has held as much in a series of cases, including Kathirvelu v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1404; Antonucci v. Canada (Minister of
Citizenship and Immigration), [1996] F.C.J. No. 1320 (T.D.) and Araujo v.
M.C.I. (Aug. 27, 1997), Court File No. IMM-3660-97 (F.C.T.D.) where Madam
Justice McGillis refused to exercise her equitable jurisdiction to stay a
removal order that the applicant had chosen to disobey by failing to report for
removal. As McGillis J. stated:
The Court routinely
hears, on an urgent basis, applications to stay the execution of deportation
orders. However, in the present case, the applicant failed to institute his
proceedings in a timely manner, and he chose to disobey a valid deportation
order. As a result, he is in Canada unlawfully and a warrant is outstanding for his arrest. In
the circumstances, the applicant cannot request the Court to exercise its
equitable jurisdiction to stay the order that he has chosen to disobey. The
request for an urgent hearing is therefore denied.
[26]
In Duboulay
v. M.P.S.E.P. (Jan. 7, 2007), Court File No. IMM-216-07 (F.C.), the Court
also emphasized the importance of applicants including all relevant facts in
their materials when seeking a stay on an urgent basis. The Court noted that
facts relating to an applicant having disobeyed the law and eluded removal were
“highly relevant” in this regard. The Court decided not to entertain the applicant’s
motion, “which would have the effect of rewarding the applicant for her
decision not to respect Canada’s laws.”
[27]
It
should also be noted that the applicant’s current removal arrangements resulted
from his arrest and detention on January 24, 2009. These enforcement measures
were directly attributable to the applicant’s failure to report for removal in
August 2005 after his stay motion was dismissed by the Court.
Insufficient evidence presented to Enforcement
Officer to support request for deferral
[28]
This
Court has held that the onus to prove that a deferral of removal is warranted
in any particular circumstances rests squarely with the applicant. In John
v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 420 at paras. 22-24, the Honourable
Madam Justice Snider held:
Further, it appears to
me that the burden rests squarely with the person seeking a deferral to present
compelling evidence to support the deferral, including, if applicable, evidence
related to the best interests of the child. Vague references to financial
concerns or unsubstantiated submissions of the lack of alternative caregivers
ought not to be sufficient and certainly, in my view, does not shift the burden
to the officer to make inquiries and otherwise ferret out better information.
[29]
In
this case, the applicant has not presented sufficient evidence to the Officer
to prove that a deferral is warranted in the circumstances. According to the
affidavit of the translator, she asked the Officer to defer removal pending the
applicant’s H&C application and due to his allegations that he faced risk
upon return to Ukraine. The Officer invited
the applicant to put his deferral request in writing and informed him that it
would be considered in a timely manner. The applicant has not done so and now
argues that the Officer’s conduct was unreasonable. There is no evidence that
the translator even gave the Officer a copy of the H&C submissions, or any
other evidence whatsoever for her to consider whether deferral was appropriate.
A simple request for a deferral, not followed by any evidence to support it,
does not shift the onus to the Officer to produce and consider evidence which
may support the applicant’s request.
[30]
It
is trite law that an outstanding H&C application, in and of itself, is not
sufficient to warrant the deferral of a person’s removal from Canada. The jurisprudence had
held that there must be compelling personal circumstances to support a request
for a deferral. This Court has also held that sometimes an H&C application
that was filed in a timely manner and has yet to be resolved due to backlogs in
the system may be an appropriate reason to defer removal; however, in this case
the applicant’s H&C was not timely as it was not filed until two years
after he failed to report for removal. Furthermore, any establishment that the
applicant alleges will be lost due to his deportation were gained in direct
contravention of Canada’s immigration laws and
while the applicant was actively evading arrest and deportation and ignoring
orders issued by this Court.
[31]
As
the applicant has failed to establish a serious issue, this motion can be
dismissed on this basis alone.
Irreparable
Harm
[32]
The
onus is on the applicant to demonstrate, through clear and convincing evidence
of irreparable harm, that the extraordinary remedy of a stay of removal is
warranted. Irreparable harm must constitute more than a series of possibilities
and cannot be simply based on assertions and speculation (Atwal v.Canada
(Minister of Citizenship and Immigration), 2004 FCA 427).
[33]
Federal Court jurisprudence also establishes that
irreparable harm must be something more than the inherent consequences of
deportation. As Mr. Justice Pelletier stated in Melo v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 403:
(…) if the phrase irreparable harm is to retain any
meaning at all, it must refer to some prejudice beyond that which is inherent
in the notion of deportation itself. To be deported is to lose your job, to be
separated from familiar faces and places. It is accompanied by enforced
separation and heartbreak.
Risk allegations already rejected by a PRRA
Officer essentially repeated in this motion record without any supporting
evidence does not constitute irreparable harm
[34]
The
risk allegations made by the applicant, which he alleges constitute irreparable
harm have already been considered and rejected by the PRRA Unit. The risk
allegations made in the H&C application are almost identical to those
described in the PRRA. The applicant cannot rely on the same risk allegations
that were not found to be established in the PRRA and were rejected previously
by this Court in a stay motion, without any new evidence, or any evidence at
all, to support them.
Inherent consequences of deportation do not
constitute irreparable harm
[35]
The
applicant claims that if deported he will be unable to return to Canada due to
the general application of Canada’s immigration laws which will require him to obtain
authorization to return to Canada (ARC). The applicant characterizes
this consequence as irreparable harm.
[36]
The
requirement to apply for an ARC is the direct result of the applicant’s choice
to remain in this country illegally after his authorized period of stay in Canada to make a refugee claim
has ended. This requirement is faced by all who are removed from Canada every year and does not
constitute anything other than the inherent effects of deportation. As such, it
does not meet the test for irreparable harm (Melo, supra).
H&C
consideration remains in effect even if applicant is removed from Canada
[37]
The
existence of an outstanding H&C application does not amount to irreparable
harm. No reason exists to believe that the H&C will not continue to be
processed, or that the decision will inevitably be negative, once the applicant
has been removed from Canada.
[38]
This
Court has held that “[t]here is nothing on the face of this provision or IRPA
as a whole that would preclude the granting of permanent resident status or an
exemption from the Act’s requirements where the applicant is outside Canada. It is clear to me that
the policy manual contemplates, as was the case in this instance, that H and C
requests will continue to be processed following removal.” (Uberoi v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1232)
[39]
Justice
Evans, writing for the Federal Court of Appeal, stated in Palka v. Canada (Minister of Public
Safety and Emergency Preparedness), 2008 FCA 165:
14
The
existence of a pending H&C application has often been held not to
constitute irreparable harm, especially when, as here, the application was not
made in timely fashion after unsuccessful applications for refugee status and a
PRRA. Counsel says that it was justifiable for them to wait five years before
making their H&C application so that they could demonstrate establishment
in Canada. This was a tactical decision and the appellants must live
with the consequences.
15
Further, the
appellants have provided no evidence that removal will render their H&C
application nugatory. Denying a stay will not destroy the H&C application
insofar as it is based on their ties to Canada through the length of time that
they have been here, family, employment, friends and school, especially if, as
counsel claims, their application is "exceptionally strong on its
merits".
[40]
This
Court has recently held that even if an applicant’s H&C application is
refused due to deportation before a decision was rendered, a remedy,
nevertheless, remains. In Stewart v. MPSEP, (August 29, 2008) Toronto,
IMM-3570-08, Mr. Justice Zinn held that the proper remedy for an H&C
application rejected solely on the basis that an applicant is no longer in Canada is to commence a
proceeding in this Court:
In my view if it is
established that the Respondent failed to properly and adequately process the
Applicant’s application on humanitarian and compassionate grounds solely or
principally because the Applicant was no longer in Canada, the Applicant will
have been denied procedural fairness. He can then seek a review of such a
refusal in a proceeding against the Respondent before this Court. There is no
evidence offered that such a process, although involving some delay, would not
provide the Applicant with a remedy.
[41]
The
applicant’s argument on this point is speculative and consists of a series of
possibilities, and as such is not clear and convincing evidence of irreparable
harm.
[42]
As
the applicant has failed to satisfy the test for irreparable harm, this motion
can be dismissed on this basis alone.
Balance of
Convenience
[43]
Section
48 of the IRPA provides that an enforceable removal order must be enforced
as soon as is reasonably practicable.
[44]
The
applicant is seeking extraordinary equitable relief. It is trite law that the
public interest must be taken into consideration when evaluating this last
criterion. In order to demonstrate that the balance of convenience favours the
applicant, the latter should demonstrate that there is a public interest not to
remove him as scheduled. (See Dugonitsch v. Canada (Minister of Employment and
Immigration.), [1992]
F.C.J. No. 320; RJR-MacDonald
Inc. v. Canada,
supra; Blum v. Canada (Minister of Citizenship and Immigration)
(1994) 90 F.T.R. 54)
[45]
The
balance of any inconvenience which the applicant may suffer as a result of
removal from Canada does not outweigh the public interest which the respondent
seeks to maintain in the application of the Immigration and Refugee
Protection Act – specifically an interest in executing a deportation order
as soon as reasonably practicable (Atwal v. Canada (Minister of Citizenship
and Immigration.) 2004 FCA 427).
JUDGMENT
For all of the
above reasons, THIS COURT ORDERS AND ADJUDGES that the
motion for a stay of removal from Canada is denied.
“Michel M.J. Shore”
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