Date: 20070131
Docket: IMM-190-07
Citation: 2007 FC 105
Montreal, Quebec, January 31, 2007
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
Iren Tulina-Litvin,
Ilya PUSHKAROV
and
Alex TULIN-LITVIN
Applicants
and
THE
Minister for public safety
and emergency preparedness
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
[10] …I
am therefore of the view that where a motion for a stay is made from a Removal
Officer's refusal to defer removal, the judge hearing the motion ought not
simply apply the "serious issue" test, but should go further and
closely examine the merits of the underlying application.
[11]
In RJR-MacDonald Inc., supra, the Supreme Court of Canada
held that, in the context of constitutional issues, motions judges faced with a
request for an interlocutory injunction ought not to delve into the merits of
the underlying application other than to determine that there is indeed a
serious issue to be tried. But the Court went on to identify two circumstances
where the Court should address the merits, one of which is where the
interlocutory application will effectively decide the underlying application.
In that case, the Court said, the motions judge should address the merits of
the application… It is that the test of serious issue becomes the likelihood of
success on the underlying application since granting the relief sought in the
interlocutory application will give the applicant the relief sought in the
application for judicial review.
Justice Denis Pelletier in Wang v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 148, [2001] F.C.J. No. 295 (QL)
in a similar case to the one at bar.
[2]
Moreover, Justice Pelletier, also, in Wang, above, stated
that a pending application for humanitarian and compassionate consideration
rarely warrants a deferral of removal:
[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. In considering the duty imposed and duty
to comply with section 48, the availability of an alternate remedy, such as a
right of return, should weigh heavily in the balance against deferral since it
points to a means by which the applicant can be made whole without the
necessity of non-compliance with a statutory obligation. For that reason, I
would be inclined to the view that, absent special considerations, an H&C
application which is not based upon a threat to personal safety would
not justify deferral because there is a remedy other than failing to comply
with a positive statutory obligation. (Emphasis of the Court.)
JUDICIAL PROCEDURE
[3]
The Applicants are citizens of Israel. They have filed a motion
seeking a stay of the deportation order pending against them until this Court
renders a final decision on the Application for Leave contesting the negative
decision of the Law Enforcement Officer refusing to defer their removal from Canada.
[4]
The Respondent submits that the removal of the Applicants to Israel
should take place as scheduled on February 1, 2007.
BACKGROUND
[5]
The Affidavit of Ms. Josée Groulx offers a
detailed chronology of the Applicants’ file to which reference is made in
respect of the salient points in the analysis portion of the decision.
issue
[6]
Do the Applicants meet the tri-partite test established by this
Court to decide motions to stay the execution of removal orders?
analysis
[7]
In order to be granted a stay of their removal, the Applicants
must demonstrate that they meet all three criteria of the tri-partite test
established by the Federal Court of Appeal in Toth v. Canada (Minister of Employment
and Immigration)
(1988), 86 N.R. 302 (F.C.A.), [1988] F.C.J. No. 587 (QL), they need to
demonstrate (1) a serious issue to be tried, (2) that they will suffer
irreparable harm if the deportation order is executed and (3) that the balance
of convenience favours them instead of the Minister. (RJR-MacDonald Inc. v.
Canada (Attorney General), [1994] 1 S.C.R. 311 (QL).)
SERIOUS ISSUE
[8]
In response to the Applicants, the threshold to be met is very
low concerning the serious issue in their case. Justice Pelletier in Wang, above,
stated:
[10] …I am therefore of the view that where a
motion for a stay is made from a Removal Officer's refusal to defer removal, the
judge hearing the motion ought not simply apply the "serious issue"
test, but should go further and closely examine the merits of the underlying
application.
[11]
In RJR-MacDonald Inc., supra, the Supreme Court of Canada
held that, in the context of constitutional issues, motions judges faced with a
request for an interlocutory injunction ought not to delve into the merits of
the underlying application other than to determine that there is indeed a
serious issue to be tried. But the Court went on to identify two circumstances
where the Court should address the merits, one of which is where the
interlocutory application will effectively decide the underlying application. In
that case, the Court said, the motions judge should address the merits of the
application… It is that the test of serious issue becomes the likelihood of
success on the underlying application since granting the relief sought in the
interlocutory application will give the applicant the relief sought in the
application for judicial review.
[9]
Therefore, the Court hearing the Applicants’ motion, not only
applies the "serious issue" test, but, goes further and closely
examines the merits of the underlying application.
[10]
The Applicants contend that the Law Enforcement Officer’s discretion was
fettered because she allegedly claimed that there would be no deferral of the Applicants’
removal from Canada; this, based on their H&C applications for permanent
residence in Canada that were forwarded after their Pre Removal Risk Assessment
(PRRA) applications were received.
[11]
Furthermore, the Applicants submit that the Law Enforcement
Officer’s discretion was fettered by policy; and s.25(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) was to facilitate
processing in accordance with the Immigration and Refugee Protection Regulations,
SOR/2002-227 (Regulations) of the spouse or common law partner in Canada class.
[12]
In matters concerning policy, Justice David H. Doherty, for the
Ontario Court of Appeal in Ainsley Financial Corp. v. Ontario Securities
Commission, [1994] O.J. No. 2966 (QL) established that:
[12] Non-statutory instruments, like guidelines, are
not necessarily issued pursuant to any statutory grant of the power to issue
such instruments. Rather, they are an administrative tool available to the
regulator so that it can exercise its statutory authority and fulfil its
regulatory mandate in a fairer, more open and more efficient manner…
…
[14] …Most importantly, for present purposes, a
non-statutory instrument cannot impose mandatory requirements enforceable by
sanction; that is, the regulator cannot issue de facto laws disguised as
guidelines. Iacobucci J. put it this way in Pezim at p. 596:
However,
it is important to note that the Commission's policy-making role is limited. By
that I mean that their policies cannot be elevated to the status of law; they
are not to be treated as legal pronouncements absent legal authority mandating
such treatment.
[13]
In Ha v. Canada (Minister of Citizenship and
Immigration), 2004 FCA 49, [2004] F.C.J. No. 174 (QL), Justice J. Edgar Sexton
for the Federal Court of Appeal narrowed down the role of policy:
[78] Importantly, as previously mentioned, decision-makers are
free to enact guidelines to assist them in the exercise of the discretion as
long as these guidelines are not mandatory and as long as visa officers
consider the particular facts of each case in determining the content of the
duty of fairness. An example of a validly worded guideline is provided in Ken Yung Yhap v. Canada (Minister of Employment and
Immigration), [1990] 1 F.C. 722:
It
is important... that officers realize that these guidelines are not intended as
hard and fast rules. They will not answer all eventualities, nor can they be
framed to do so. Officers are expected to consider carefully all aspects of
cases, use their best judgment [sic], and make the appropriate recommendations.
[14]
The Respondent specified that, upon learning that the Applicants had
submitted a second sponsored application for permanent residence for
humanitarian and compassionate grounds, the Law Enforcement Officer’s first
reflex was to check whether or not the removal could be deferred according to
the Public Policy under 25(1) of IRPA to facilitate processing in accordance
with the Regulations of the spouse or common law partner in Canada class.
[15]
Upon recognizing that the Applicants could not benefit from a deferral of
their removal based on that policy, the Law Enforcement Officer explained the
situation in that regard to the Applicants.
[16]
Further, no final decision on the deferral was taken at that point. The
Law Enforcement Officer continued to study the document prepared by the
Applicants’ counsel in which a request was made for a deferral of their removal
from Canada.
[17]
Had the Law Enforcement Officer’s discretion been fettered by the
policy, as the Applicants’ contend, she would not have continued to consider
their counsel’s request for deferral of their removal.
[18]
The Respondent specified that the Law Enforcement Officer duly exercised
her discretion upon returning to her office to consider the Applicants’
counsel’s request for deferral of their removal from Canada (paragraph 14, last
arrow of the Affidavit of Josée Groulx).
[19]
The fact that the Law Enforcement Officer came to a negative
conclusion regarding the deferral does not indicate that her discretion was
fettered by policy. Rather, the terms she applied in rendering her decision
clearly indicate that she considered the request for deferral. The decision
states: “After reviewing the facts and allegations included in your request,
this confirms that the deferral of removal is refused” (Exhibit “E” of the
Affidavit of Josée Groulx).
[20]
The Applicants argue that the removal officer did not provide sufficient
reasons in support of her decision not to defer their removal.
[21]
The duty of removal officers was canvassed in Boniowski v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1161, [2004] F.C.J. 1397 (QL), at
paras. 11-12, (T.D.). This Court has determined that there is no necessity
for more formal, written reasons required for administrative reasons in such a
matter.
[22]
In Hailu v. Canada (Solicitor General), 2005 FC 229, [2005] F.C.J. No. 268,
Justice Conrad von Finkenstein confirms categorically that the decisions
rendered by removal officers do not require a formal decision with reasons. There
were no reasons or notes in this case except for an affidavit from the officer which
was filed in response to the judicial review. Justice von Finkenstein did
indicate that keeping notes is “useful and ought to be encouraged, it is
however not an absolute requirement”.
[23]
The Applicants’ request to stay their removal was made on January
9, 2007 during the interview with the Law Enforcement Officer.
[24]
The Law Enforcement Officer took notes during her interview which briefly
explain that which happened during the interview, as per Exhibit “A” of the
Affidavit of Huguette Godin.
[25]
The Law Enforcement Officer indicated in her affidavit that she
considered the following elements before rendering her decision:
Ø
Tous les faits au dossier des demandeurs. En
outre j’ai tenu compte du fait que la demanderesse était mariée à un citoyen
canadien et que sa première demande de parrainage avait été refusée parce que
l’agent d’immigration n’avait pas cru à la bonne foi de son mariage, mais
qu’elle estimait avoir été mal représentée par ses conseillers de l’époque.
J’ai pris en considération le fait que le demandeur Alex Tulin-Litvin était
fiancé à une Canadienne et que l’autre demandeur, Ilya Pushkarov, était
étudiant au secondaire. À l’égard du demandeur Ilya, je me suis enquise du
niveau auquel il était rendu et voyant qu’il n’était pas prêt de recevoir un
diplôme, j’ai jugé qu’un report du renvoi pour cette raison n’était pas
justifié. J’ai également tenu compte du fait que les demandeurs n’ont soulevé
aucune raison médicale les empêchant de voyager et du fait qu’ils n’ont jamais
allégué quelque danger que ce soit advenant un retour en Israël;
Ø
La demande
de report du renvoi qui m’a été remise par le procureur des demandeurs le 9
janvier 2007.
(Affidavit
of Josée Groulx, paragraph 15.)
[26]
On January 9, 2007, the Law Enforcement Officer rendered her decision
refusing to defer the removal:
This will acknowledge receipt of your request for an
administrative deferral of removal for the above mentioned family.
After reviewing the facts and allegations included in your
request, this confirms that the deferral of removal is refused.
The removal process will continue and only a stay of removal
issued by the Federal Court can stop the removal.
(Exhibit “E” of the Affidavit of Josée Groulx)
[27]
In light of the foregoing, it is clear that the reasons provided
by the removal officer in the present case are sufficient.
IRREPARABLE HARM
[28]
The second requisite element of the tri-partite test for the granting of
a stay of removal is to determine whether the Applicants would suffer
irreparable harm if they are removed from Canada. (Toth, above, RJR-MacDonald,
above.) The Applicants have not shown that this part of the test has been met.
[29]
The Applicants must demonstrate that removal would result in a
reasonable likelihood of harm.
(Soriano v. Canada (Minister of Citizenship
and Immigration),
[2000] F.C.J. No. 414 (F.C.T.D.) (QL).)
[30]
The notion of irreparable harm has been defined by the Court as follows:
[22] In Kerrutt v. M.E.I.
(1992), 53 F.T.R. 93 (F.C.T.D.) Mr. Justice MacKay concluded that, for the
purposes of a stay application, irreparable harm implies the serious likelihood
of jeopardy to an applicant's life or safety. This is a very strict test and I
accept its premise that irreparable harm must be very grave and more than the
unfortunate hardship associated with the breakup or relocation of a family.
(Calderon v. Canada (Minister of
Citizenship and Immigration), [1995] F.C.J. No. 393 (QL).)
[31]
Irreparable harm is more substantial and more serious than
personal inconvenience. It implies the serious likelihood of jeopardy to an
Applicant’s life, liberty or security of the person, or an obvious threat of
ill treatment in the country to which removal will be effected. (Mikhailov v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 642 (F.C.T.D.) (QL); Frankowski
v. Canada ((Minister of Citizenship and Immigration), [2000] F.C.J. No. 935
(F.C.T.D.);
Louis v.
Canada ((Minister of
Citizenship and Immigration), [1999] F.C.J. No. 1101 (F.C.T.D.).)
[32]
A conclusion that the Applicant will suffer irreparable harm if removed
cannot be based on speculation or mere possibility. The evidence supporting
such a finding must be clear and non-speculative. (Chen v. Canada ((Minister of
Citizenship and Immigration), 2004 FC 464, [2004] F.C.J. No. 567 (F.C.)
(QL); Atakora v. Canada (Minister of Employment and Immigration), [1993]
68
F.T.R.
122 (F.C.T.D.), [1993] F.C.J. No. 826 (QL); John v. Canada ((Minister
of Citizenship and Immigration), [1999] F.C.J. No. 915 (F.C.T.D.) (QL).)
[33]
Neither unpleasant conditions in the country to which the
Applicant is scheduled to be removed, nor the fact that Canada is a preferable
place to live, constitutes irreparable harm. (Abazi v. Canada (Minister of
Citizenship and Immigration.), [2000] F.C.J. No. 429 (F.C.T.D.) (QL).)
[34]
The Applicants allege at paragraphs 66-88 several factors which they
claim constitute irreparable harm.
[35]
Most of those factors are linked to the separation of their
family. The Applicant Iren with her husband Valery Mirinichov, the Applicant
Alex with his fiancée Maria Potashova, the Applicants with Iren’s mother
Tatiana Lebedev-Litvin, the Applicants Alex and Ilya with their stepfather
Valery Mirinichov and grandmother Tatiana Lebedev-Litvin.
[36]
Justice John M. Evans of the Federal Court of Appeal has stated
in Selliah v. Canada
(M.C.I.),
[2004] F.C.J. No. 1200 (QL) that :
[13] The removal of persons who have remained in Canada without
status will always disrupt the lives that they have succeeded in building here.
This is likely to be particularly true of young children who have no memory of
the country that they left. Nonetheless, the kinds of hardship typically
occasioned by removal cannot, in my view, constitute irreparable harm for the
purpose of the Toth rule,
otherwise stays would have to be granted in most cases, provided only that
there is a serious issue to be tried: Melo v. Canada (Minister of Citizenship and Immigration) (2000), 188
F.T.R. 39.
[37]
In a recent decision in Perry v. Canada (Minister of
Public Safety and Emergency), 2006 FC 378, [2006] F.C.J. No. 473, it was reiterated that:
[31] This
Court has held that the break-up or relocation of an applicant's family is not
a sufficient basis upon which to find that the applicant will suffer
irreparable harm if removed. (Mallia
v. Canada (M.C.I), [2000] F.C.J. No. 369 (F.C.T.D.); Mikhailov v. Canada (M.C.I.), [2000] F.C.J. No. 642
(F.C.T.D.); Aquila
v. Canada (M.C.I.), [2000]
F.C.J. No. 36 (F.C.T.D.))
[32] In
Tesoro, the Federal Court of Appeal recently considered irreparable harm in
some detail and held that family separation is not necessarily a basis for
finding irreparable harm. To the contrary, family separation is merely one of
the consequences of deportation. (Tesoro v. Canada (M.C.I), [2005]
F.C.J. No. 698, 2005 FCA 148 at paras. 34-42).
[38]
In addition, the Applicants allege that should they be forced to
leave Canada (paras. 84-86 of their written observations):
·
Valery Mironichev, the Applicant
Iren’s Canadian husband, will be separated from her and his stepchildren;
·
Maria Potashova, the Canadian
fiancée of Applicant Alex, will be separated from him and that her health is
fragile;
·
Tatiana Lebedev-Litvin, the mother
of Applicant Iren and grandmother to Applicants Alex and Ilya, will be
separated from them.
[39]
In Perry, above, it was specified that irreparable harm is
evaluated from the Applicant’s standpoint and not from the standpoint of the
family members remaining in Canada:
[30] Even where separation
caused by removal may produce substantial economic or psychological hardship to
a family unit, the test remains whether the applicant himself will suffer
irreparable harm. (Mariona v. Canada (M.C.I.), [2000] F.C.J. No. 1521
(T.D.); Carter v. Canada (M.C.I.), [1999] F.C.J. No. 1011 (T.D.); Balvinder
v. Canada (M.C.I.) (unreported, December 15, 2005, IMM-7360-05))
[40]
In light of the above, the Applicants have not shown that the separation
of their family constitutes irreparable harm.
[41]
Moreover, Justice Pelletier, in Wang, above, stated that a
pending application for humanitarian and compassionate consideration rarely
warrants a deferral of removal:
[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. In considering the duty imposed and duty
to comply with section 48, the availability of an alternate remedy, such as a
right of return, should weigh heavily in the balance against deferral since it
points to a means by which the applicant can be made whole without the
necessity of non-compliance with a statutory obligation. For that reason, I
would be inclined to the view that, absent special considerations, an H&C
application which is not based upon a threat to personal safety would
not justify deferral because there is a remedy other than failing to comply
with a positive statutory obligation.
[42]
In the case at bar, the Applicants’ pending applications for permanent
residence based on humanitarian and compassionate consideration do not invoke a
risk related to their personal safety. (Applicants’ Record, p. 47-49)
[43]
Furthermore, the Applicants did not apply for leave to this Court of
their negative PRRA decision.
[44]
The Refugee Protection Division (RPD) came to the conclusion that
State protection was available to the Applicants in Israel (Exhibit “A” of the
Affidavit of Josée Groulx) and although they sought an application for leave
from this Court against the negative RPD decision, it was denied on October 9,
2003.
[45]
The Applicants also allege at paragraph 75 of their written
representations that they will face discrimination if they are returned.
[46]
This allegation, however, is not supported by an affidavit and cannot be
considered by this Court. (Kukan v. Canada (Minister
of Manpower and Immigration), [1974] 1 F.C. 12, [1974] F.C.J. No. 20
(QL).)
[47]
Nonetheless, in a similar case Abramov v. Canada (Minister
of Citizenship and Immigration), [1998] F.C.J. No. 1579 (QL), in which the
applicant was alleging that she and her minor child would suffer discrimination
if they were to return to Israel, Justice Evans concluded that discrimination
that was not life threatening did not constitute irreparable harm:
[13] First, the harassment
and discrimination in Israel that the principal applicant alleged that she had
experienced were not life-threatening, nor did they deprive her of her liberty
in any of the most obvious ways. Even if she were exposed to similar
conduct on her return to Israel pending the disposition of the judicial review
proceeding, I do not believe that she would thereby sustain irreparable harm
[48]
In another attempt to show irreparable harm, the Applicants
pointed out that the Applicant Alex Tulin-Litvin will be incarcerated if he is
sent back to Israel because he objected to serve in the Israeli army.
[49]
As stated in the uncontested negative PRRA decision, the Israeli
law imposing military service is an ordinary law of general application and the
consequences incurred by conscientious objectors do not amount to persecution.
(Zolfagharkhani
v. Canada (Minister of Employment and Immigration), [1993] 3
F.C. 540, [1993] F.C.J. No. 584 (QL).)
[50]
Given that the Applicant, Alex Tulin-Litvin, knowingly contravened a law
of general application, the Respondent specified that he fears prosecution
rather than persecution and that this does not constitute irreparable harm.
[51]
Lastly, with regard to the Applicants’ alleged fear of return to Israel
based on country conditions, the Applicants did not apply for leave against the
very recent negative PRRA decision dated December 5, 2006. In this decision the PRRA officer reviewed the Applicants’ situation and concluded that:
Après avoir pris en considération les dossiers d’immigration
des demandeurs dans leur entier, l’ensemble de leurs représentations ainsi que
la documentation publique pertinente, je conclu que les demandeurs Iren
Tulina-Litvin, Alex Tulin-Litvin et Ilya Pushkarov ne sont pas des personnes à
protéger tel que précisé aux articles 96 et 97 de la LIPR, car n’ayant pas
démontré de risque personnel de persécution et que le cas échéant, pourraient
se prévaloir de la protection de l’état.
(Applicants’
Record, Page 29.)
[52]
Moreover, the Applicant Iren Tulina-Litvin does not allege in her
affidavit how she would be at risk if she were to be returned to Israel. She
alleges at paragraph 17 of her affidavit that she is adducing a travel advisory
for Israel and surrounding areas prepared by foreign affairs. (Applicants’
Record, page 8.)
[53]
In respect of this document, at pages 446-453 of the Applicants’ Record,
it does not advise travelers to leave Israel. Rather, it is a travel advisory specifically
in regard to the West Bank and the Gaza Strip; and furthermore, advises caution
throughout the country.
[54]
This document predates the PRRA decision which concluded that the
Applicants incurred no personal risk if they were to return to Israel.
THE
BALANCE OF CONVENIENCE
[55]
Pursuant to section 48 of IRPA, the Respondent has a duty to
execute an enforceable removal order “as soon as is reasonably practicable”:
|
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 quitter immédiatement le
territoire du Canada, la mesure devant être appliquée dès que les
circonstances le permettent.
|
[56]
It is trite law that the public interest must be taken into
consideration when considering this last criterion.
[57]
In order to demonstrate that the balance of convenience favours the
Applicants, the Applicants would have had to show that there is a public
interest not to remove them as scheduled. (RJR-MacDonald, above; Blum c. Canada (Minister of Citizenship
and Immigration), [1994] 90 F.T.R. 54, [1994] F.C.J. No. 1990 (QL).)
[58]
As stated by Justice John Sopinka in Canada (Minister
of Employment and Immigration) v. Chiarelli, [1992] 135 N.R. 161
(SCC) (though dealing with an extradition case): “…The most fundamental
principle of immigration law is that non-citizens do not have an unqualified
right to enter or remain in the country...”
[59]
The Applicants have not demonstrated that the balance of convenience
favors them.
CONCLUSION
[60]
For the reasons listed above, the Applications of the Applicants for a
stay of removal is dismissed.
JUDGMENT
THIS COURT ORDERS that the motion for an order to
stay the removal of
the Applicants be dismissed.
“Michel M.J. Shore”
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