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Federal Court
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Cour fédérale
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Date: 20090924
Docket: IMM-333-09
Citation: 2009 FC 963
Ottawa, Ontario,
September 24, 2009
PRESENT: The
Honourable Mr. Justice Harrington
BETWEEN:
PETRA RECORT MASON
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Year after year, application after application,
Ms. Mason lied about why she was afraid to return to Grenada. Now that the end is near she has decided to tell the real reason;
or so she says. As this is a judicial review of a decision of an enforcement
officer not to defer her removal for two years while her third application for
permanent residence from within Canada on humanitarian and compassionate
grounds is being processed, it does not fall upon me to determine whether her
story is credible, uncredible or incredible.
[2]
Ms. Mason came to Canada in 1995 and first brought herself to the attention of the
authorities when she made an application to remain in Canada on humanitarian and compassionate grounds. Her application was
rejected. In 2004 her application for refugee protection was dismissed. She
said she feared the rise in the crime rate in Grenada due to economic downturn, and also feared her ex-boyfriend. This
fear was only presented to the Panel at the time of her hearing. She had been
attacked by him in 1990. This risk also served as one of the bases for her
pre-removal risk application which was turned down. The Officer stated: “The
applicant had an opportunity to submit new evidence that would persuade me to
arrive at a different conclusion from the Refugee Protection Division. The risk
identified by the applicant had been assessed at her refugee claim. She fears
her ex-boyfriend upon her return to Grenada.” Her third application for a permanent resident visa from within Canada was made in May of last year. In the
normal course, another two years or so will pass before a decision is made.
[3]
Once a negative decision was rendered on her
PRRA, she was removal ready and was directed to report to Pearson Airport for removal to Grenada. Through counsel she asked the enforcement
officer to defer the removal on a number of grounds including her Canadian-born
son and her job. It was also alleged that there should be a deferral in light
of new evidence disclosed in the pending H&C application. That application
was attached, but the real “new evidence” was not identified.
[4]
In the motion for a stay before Mr. Justice
O’Keefe and before me she admitted that she lied in the past and pointed out
that in her new H&C application “family, friends and I disclosed my fear of
my brother who suffers from psychiatric illness. I had been uncomfortable
discussing this, and relied on advice that I could remain in Canada based on other factors”. However,
that is not what she told the enforcement officer.
[5]
Counsel for Ms. Mason submits that since a stay
was granted on the grounds of a serious risk of a physical danger, this
judicial review should be granted as a matter of course. He also suggests that
since a stay had been granted, her H&C application should have been put at
the top of the list. It is not for the Court to dictate who should jump the
queue and in what circumstances. This is not an application which has been
pending for seven years.
[6]
A stay does not dictate the outcome of a
judicial review. It is based on the tripartite test set out in such cases as Toth
v. Canada
(Minister of Citizenship and Immigration) (1988), 86 N.R. 302
(F.C.A.) and RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, i.e. serious issue, irreparable harm and
balance of convenience. A Motions Judge faced with an application for a stay
is obliged to act quickly, often on an incomplete record and without a detailed
analysis of the case. The issue is whether the status quo should be maintained
to allow a more profound study in the fullness of time. However, a judicial
review is decided on the balance of probabilities, a more stringent test.
[7]
The Officer noted that this was Ms. Mason’s
third H&C application. He said that these applications are decided upon by
competent, credible, CIC officials with experience in assessing such
applications. He went on to say: “Insufficient evidence has been provided to
provide that circumstances have changed enough to warrant a different decision
on her third H&C application.” Ms. Mason’s counsel leaps on the following
sentence: “There were no submissions or evidence provided with the deferral
request as evidence that new risks exists.”
[8]
In counsel’s H&C submissions, and in Ms.
Mason’s 39-paragraph affidavit, it is stated that she lied when she said that
she was not living with her common-law spouse in Canada while in fact she was. Both the covering letter from counsel, and
Ms. Mason’s affidavit, as well as other affidavits and statements, emphasize
Ms. Mason’s mentally-ill violent brother and that he was the real reason she
left Grenada, but they do not say that this was the first time her brother was
mentioned.
[9]
The lie identified was that she was not living
with her common-law spouse in Canada while in fact she was. Nowhere is it stated that the alleged reason
she left Grenada, her fear of a
mobbed-up ex-boyfriend, was a lie. Ms. Mason’s brother’s situation was not new.
It is far too much to expect of an enforcement officer that he or she should
not only read the previous decisions, which do not mention the brother, but
also review each and every document in each and every file to see if the
brother was mentioned in the applications, but not commented upon by the
decision maker. Mr. Justice Létourneau’s admonishment in Remo Imports
Ltd. v. Jaguar Cars Ltd., 2007 FCA 258, [2008] 2 F.C.R. 132 that an
appellate tribunal is not a ferret is applicable.
[10]
Ms. Mason relies upon Wang v. Canada
(Minister of Citizenship and Immigration), 2001 FCT 148, [2001] 3 F.C. 182,
bolstered this year by Baron v. Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81, 79 Imm. L.R. (3d) 157 for the proposition that
although an enforcement officer has little discretion, one factor to take into
account is the risk of physical danger. However, on the file before him the
officer was entitled to assume that that risk had been assessed by those who
were burdened with that responsibility. His decision was reasonable and is not
to be set aside.
[11]
Our system is such that if a new direction to
report for removal is issued, Ms. Mason may again seek a deferral and, if
unsuccessful, seek another stay.
ORDER
FOR REASONS
GIVEN;
THIS COURT
ORDERS that:
1.
The application for judicial review is
dismissed.
2.
There is no serious question of general
importance to certify.
“Sean Harrington”
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