Date: 20110330
Docket: IMM-1798-11
Citation: 2011
FC 394
BETWEEN:
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HERMAN MITCH ST. CLAIR
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS
FOR ORDER
RENNIE J.
[1]
The
following are the reasons in relation to my decision, dated March 27, 2011,
dismissing the applicant’s motion dated March 24, 2011 for an Order to stay the
execution of a removal Order made against him, scheduled to be executed on
Monday, March 28, 2011 to St. Lucia, pending the final resolution of the applicant’s
Application for Leave and for Judicial Review of a negative decision by a
Pre-Removal Risk Assessment (PRRA) Officer, dated February 11, 2011.
[2]
On
Saturday, March 26, 2011, I heard the submissions of counsel, on short notice,
by telephone conference in chambers, in Ottawa, Ontario.
[3]
On
Sunday, March 27, 2011, I ordered the motion to be dismissed, and indicated
that I would give reasons.
[4]
I
have considered the evidence and the submissions of the parties. I have also
considered the conjunctive tri-partite test, set forth in RJR – MacDonald
Inc. v Canada (Attorney
General)
[1994] 1 S.C.R. 311, that must be satisfied before a stay of removal can be
granted.
[5]
Insofar
as the serious issue is concerned, the applicant contended that the refusal to
defer pending a decision on his in-land application for permanent residence
under the spousal sponsorship class breached his right to procedural fairness,
and was also irreparable harm.
[6]
Section
25(1) of the Immigration and Refugee Protection Act, 2001, c. 27 (IRPA) provides a broad
discretion on the Minister to grant an exemption from “any applicable criteria
or obligation”. Hence the discretion to grant an exemption which might have
been exercised favourably under CIC Operational Policy Bulletin 126 for in-land
spousal sponsorship remains equally open to the applicant under section 25(1)
of the IRPA. He has not lost any right to advance a claim for an
exemption by reason of removal and hence no serious issue can be said to arise.
[7]
The
second serious issue advanced is the existence of new evidence in the form of
psychiatric and medical reports from the hospital in St. Lucia where he was treated
after an attack by gang members in 2008. These reports were not before the Refugee
Protection Division (RPD) even though they existed at the time. The
explanation as to why they were not put before the RPD was based on the
applicant’s depressive state and does not, given the lengthy passage of time,
constitute a sufficient or reasonable explanation.
[8]
The
applicant was convicted in 2004 of carrying a weapon. The sentence of one year
reflects the seriousness of the offence. The applicant had received a negative
PRRA in 2004, which he did not challenge. Upon his return to Canada in 2008, his claim for
refugee status was denied on July 15, 2010, and leave to commence judicial
review was denied on October 28, 2010. On December 28, 2010 he applied for
another PRRA for which he received a negative result on March 3, 2011. As well
the application for in-land sponsorship was only filed February 7, 2011. Even
if I were satisfied that a serious issue existed, the balance of convenience
would not be in the applicant’s favour.
THIS COURT
ORDERS
that this motion be dismissed.
"Donald
J. Rennie"
Toronto, Ontario
March
30, 2011
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