Docket: IMM-7854-11
Citation: 2011 FC 1326
Ottawa, Ontario,
November 18, 2011
PRESENT: The
Honourable Mr. Justice Scott
BETWEEN:
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VLADIMIR
CAYEMITTES
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Applicant
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and
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THE
MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR ORDER AND ORDER
UPON
Motion by the Applicant dated November 2nd, 2011 for an interim
Order of prohibition or for an interim stay of removal of the Applicant
pursuant to the removal order that was issued against the Applicant on November
16, 2004, pending determination by this Court of the Application for leave and
judicial review served and filed November 3rd 2011, of a negative
decision by a Pre-Removal Risk Assessment [PRRA] Officer, dated October 5,
2011;
AND
UPON reading the materials filed with the Court and
hearing counsel for the Applicant and for the Respondent earlier yesterday;
AND
UPON reviewing the authorities provided to the
Court and cited in the materials filed with the Court;
AND
UPON considering the tripartite test for a stay
articulated by the Federal Court of Appeal in Toth v Canada
(Minister of Employment and Immigration), [1988] FCJ No 587;
AND
UPON considering the motion made by counsel for the
Respondent pursuant to rule 155(2)(a) of the Federal Court Rules,
SOR/98-106;
AND
UPON having heard the representations of counsels
for the parties with respect to said motion and having determined that it is in
the best interest of justice that said motion for an indefinite confidentiality
order applicable to all materials contained in both the Applicant’s and the
Respondent Minister’s record be kept confidential for an indefinite period and
that only a solicitor of record or, a solicitor assisting in the proceedings,
who is not a party, be entitled to have access to said confidential material.
Endorsement
1. I am
not satisfied that the Applicant has demonstrated that there is a serious issue
to be tried. I am unable to conclude, on the balance of probabilities, that the
PRRA Officer in essence made adverse credibility findings when she concluded,
on October 5, 2011, that the Applicant had not provided sufficient evidence to
meet his burden. The Officer accepted the Applicant’s representation regarding
his personal situation, his family, his children and the situation in Haïti but
noted that the Applicant has not added more recent information since filing his
application in December 2009. The Applicant moved and failed to inform
Immigration services of said move after December 2009. The Officer noted the
Applicant’s criminal record falls within the exception of section 230 (3)(c)
of the Immigration and Refugee Protection Regulations, SOR/2002-227, the
serious criminality exception to the ministerial stay of removal. Nothing in
the Officer’s decision questioned the Applicant’s credibility in any way.
Accordingly, I am not satisfied that a serious issue has been raised with
respect to whether the PRRA Officer erred.
2. The
Applicant’s counsel did not identify for the Court any evidence submitted by the
Applicant that was ignored by the PRRA Officer, and that did not support the
PRRA Officer’s conclusion. Accordingly, I am unable to conclude that a serious
issue has been raised with respect to the reasonableness of the PRRA Officer’s
conclusion.
3. The Applicant’s counsel submitted that the doctrine of legitimate
expectation could apply in this case since the Minister of Employment and
Immigration granted a temporary working permit in 2007 to the Applicant,
notwithstanding that his application for permanent residence was rejected in
2006 and that the stay applicable to Haïti in 2007, as a result of the
hurricane, could not apply to the Applicant on account of his criminal
convictions .The Applicant contends that this permit could only have been
issued on Humanitarian and Compassionate grounds pursuant to section 25.1 of
the Act at the sole discretion of the Minister. Hence the Applicant submits
that the Minister should be consistent and adhere to the promise that was made
with the issuance of the work permit. Unfortunately, these circumstances are
not part of the underlying PRAA decision that is being challenged by the application.
Hence this claim cannot be entertained by this Court and even if it was, it is
trite law that the doctrine of legitimate expectations can only procure
procedural rights.
4. In
short , the Applicant has not raised a serious issue with respect to whether
the PRRA Officer’s decision (i) falls “within the range of possible ,
acceptable outcomes which are defensible in respect of the facts and the
law”(see Dunsmuir v New-Brunswick, 2008 SCC 9 at para 47).
5. The
Applicant has not satisfied his burden of establishing that he faces a risk of
irreparable harm if he is removed from Canada. Separation from one’s family is a direct and normal consequence of
deportation. The evidence adduced by the Applicant establishes that the
conditions in Haïti are not ideal and present certain risks but the Court
cannot conclude that these risks will inevitably lead to irreparable harm to
the Applicant.
6. Finally,
the rule being the enforcement of deportation orders, the Applicant was unable
to demonstrate that the balance of convenience favours a granting of the
requested stay by this Court in this instance.
ORDER
THIS
COURT ORDERS that
1.
The motion be dismissed.
2.
The complete record be kept confidential and
that only a solicitor who represents a party or is assisting in the proceedings
be entitled to have access to the confidential material.
"André F.J. Scott"
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