Date: 20070131
Docket: IMM-343-07
Citation: 2007 FC 100
Montreal, Quebec, January 31, 2007
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
Nadiath RADJI
Leyla APITHY
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
To simply require that the officer determine
whether the child's best interests favour non-removal is somewhat artificial --
such a finding will be a given in all but a very few, unusual cases. For all
practical purposes, the officer's task is to determine, in the circumstances
of each case, the likely degree of hardship to the child caused by the
removal of the parent and to weigh this degree of hardship together with other
factors, including public policy considerations, that militate in favour of or
against the removal of the parent. (Emphasis of the Court.)
As stated by Justice Robert Décary
in Hawthorne v. Canada (Minister of Citizenship and Immigration),
[2002] F.C.J. No. 1687 at pages 562 to 563 (C.A.) (QL), and cited by the
Applicants.
[2]
For the purpose of a stay of removal,
irreparable harm is a very strict test. Irreparable harm is very grave. The evidence in support of
irreparable harm must be clear and non speculative; the Court must be satisfied
that irreparable harm will occur if the relief is not granted. In
this case, the Applicant’s medical condition does not prevent him from
travelling by plane or otherwise. There is no evidence that treatment for the Applicant’s
medical condition which consists of rehabilitation sessions, massage therapy,
acupuncture/acupressure/myotherapy, reassessment is not available to him in the
United States or for that matter in Latvia. (Emphasis of the Court)
In German Suels
v. Solicitor General of Canada, an order rendered in 2004 (IMM-6418-04,
July 26, 2004), the Court had this to say in relation to an applicant’s medical
situation.
JUDICIAL
PROCEDURE
[3]
By Notice of Motion dated January 24, 2007, the
Applicants seek a stay of the removal order to the United
States that is to be executed on February 1, 2007.
[4]
The Applicants seek a stay until their
application for leave, filed on January 24, 2007 has been disposed of by this
Court. The underlying application to the present motion challenges the decision
of the “H & C Officer dated December 14, 2006 and communicated to the
Applicant on January 9, 2006 in which she refused the Applicants’ request for
permanent residence on humanitarian and compassionate grounds
(H&C application) made pursuant to section 25 of the Immigration and
Refugee Protection Act, SOR/2002-227 (IRPA).
BACKGROUND
[5]
The principal Applicant, Ms. Nadiath Radji, a
citizen of Benin, and her four
year old daughter Leyla Apithy, a citizen of the United States, arrived in Canada on January 6, 2004 and claimed
refugee protection the same day.
[6]
On October 7, 2004, the Immigration and Refugee
Board (IRB) refused the principal Applicant’s claim for asylum. The IRB
concluded that the principal Applicant’s story lacked credibility. The IRB
particularly noted that the principal Applicant’s behaviour in returning to her
country on several occasions, and her failure to claim asylum in France and the United
States, was incompatible with her alleged subjective
fear of persecution in her country of origin.
[7]
The principal Applicant’s application for leave
and judicial review in relation to the rejection of her claim by the IRB was
dismissed by this Court on February 2, 2005.
[8]
On December 14, 2006, the H&C Officer
rendered a negative decision on the Applicants’ H&C application. The
Applicant was informed of this decision and of her date of departure on January
9, 2007.
ISSUE
[9]
Have the Applicants demonstrated that the
present motion to stay their removal satisfies all three branches of the
“tri-partite test” established by this Court to determine that a stay should be
granted?
ANALYSIS
[10]
To succeed in this judicial stay, 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 that (1) their motion is based on a
serious issue (2) that they will suffer irreparable harm if the removal order
is executed and (3) that the balance of convenience favours them instead of the
Minister.
Serious
issue
[11]
This Court has ruled that a stay order would
effectively grant the relief sought on the underlying application, therefore the request must be based on relatively
substantial legal grounds - more than just a serious issue. The Applicants must
thus demonstrate that they have a likely chance of succeeding on the underlying
judicial review application. (Barrera v. Canada (Minister of Citizenship and
Immigration), 2003 FCT 779 (F.C.T.D.), [2003] F.C.J. No. 1007 (QL), at
para. 6; John v. Canada (Minister of Citizenship and Immigration), 2002 FCT 365 (F.C.T.D.), [2002] F.C.J. No. 466 (QL), at para. 7.)
[12]
The Applicants have not demonstrated by their
arguments that the underlying application for judicial review of the H&C
decision has a chance of succeeding.
[13]
The Applicants essentially argue that the H&C Officer erred
in concluding that they would not suffer unusual, undeserved, or disproportionate
hardship if required to apply for permanent residence from outside Canada.
The H&C Officer properly evaluated the best interests of the child
[14]
The Applicants allege
that the H&C Officer committed an error of law by applying the wrong
standard in the assessment of the best interests of the child. (Applicants Record, p.
101, paras. 41 to 69)
[15]
Although an immigration officer must always consider the best interests
of the child, being “alert, alive and sensitive to them” when making the
H&C decision, the Courts have been clear that this certainly does not mean
that the presence of children is determinative of the application or that the
children’s best interests always outweigh other considerations. If the
immigration officer examines and weighs the interests of the children and does
not minimize their best interests “in a manner inconsistent with Canada’s
humanitarian and compassionate tradition and the Minister’s guidelines,” it is
not for the Court to re-examine the weight assigned to this factor by the
immigration officer. (Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA
125, [2002] F.C.J. No. 457 (QL) at paras. 11-13, 29; Baker v. Canada (Minister
of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paras. 63, 75.)
[16]
Whether an immigration officer gave sufficient weight to the best
interests of the child is determined on a case by case basis. The Applicants in
this case have failed to show that the decision of the H&C Officer was
unreasonable. The Officer’s assessment in this regard demonstrates that the
Officer was alert, alive and sensitive to the minor Applicant’s best interests,
but ultimately it was not enough to warrant a waiver of the usual requirements
under the IRPA as part of the Applicants’ H&C application.
[17]
In the assessment of the best interests of the principal
Applicant’s child, the Officer made the following observations:
·
The minor
Applicant is a citizen of the U.S. and is currently almost 5 years old. She
arrived in Canada at the age of 2 years and 10
months;
·
She lived
in Benin, her mother’s country of
origin, between the ages of 3 months and 16 months;
·
She has
also visited France for a short period and lived
in the United
States;
·
She has
already travelled and no indication was given that she was unable to adapt to
the different locations in which she had lived;
·
Her father
is not involved in her upbringing;
·
As the
child of a citizen of Benin, a right to citizenship in
that country exists;
·
She has
adapted well to her environment in Canada;
·
She is not
yet old enough to attend school;
·
The
educational opportunities for girls are improving in Benin;
·
The
principal Applicant is well educated, having pursued her studies in Benin as
well as the Ivory
Coast;
·
The
principal Applicant has demonstrated that she is prepared to do everything in
her power to make sure that her daughter receives the best services and care
available to her.
(H&C Decision and Reasons, Applicants’
Record, pp. 4-10.)
[18]
After carefully reviewing the whole of the evidence before her,
the H&C Officer concluded that the removal of the Applicants from Canada in
order to make a permanent resident claim from abroad would not be detrimental
to the child’s development or emotional well being.
[19]
As stated by Justice Décary
in Hawthorne, above, and cited by the Applicants themselves::
To simply require that the officer
determine whether the child's best interests favour non-removal is somewhat
artificial -- such a finding will be a given in all but a very few, unusual
cases. For all practical purposes, the officer's task is to determine, in
the circumstances of each case, the likely degree of hardship to the child
caused by the removal of the parent and to weigh this degree of hardship
together with other factors, including public policy considerations, that militate
in favour of or against the removal of the parent. (Emphasis of the Court.)
[20]
The onus was on the principal Applicant to put before the officer
any specific factors she wished the officer to take into account in her
analysis of the best interests of the child. The officer is not required to
request further information.
[21]
The Applicants have failed to show that the H&C Officer was not
alert and sensitive to the best interests of the child.
[22]
Consequently, it cannot be concluded that the H&C Officer
committed an error of law in the assessment of the best interests of the child.
The H&C
Officer properly evaluated the Applicants’ degree of establishment
[23]
The Applicants argue that the Officer erred by
failing to properly assess their H&C application in light of their degree
of establishment in Canada.
[24]
The H&C Officer’s decision clearly
demonstrates that she specifically took into consideration the relevant
criterion for the purpose of determining whether there were sufficient
humanitarian and compassionate circumstances to warrant the granting of an
exemption.
[25]
For example, the Officer considered the
principal Applicant’s work, language abilities, efforts
at self improvement, family ties, community involvement and volunteer work.
(H&C Decision, Applicant’s Record, pp. 9-10.)
[26]
While the Applicant’s efforts to integrate into
Canadian society were a positive factor in her favour, the degree of
establishment is only one element amongst several others that had to be weighed
and considered by the H&C Officer.
[27]
The Applicants did not demonstrate that their
degree of establishment went beyond that which can normally be expected from
persons having lived in this country for two years. They did not demonstrate
that their departure from Canada would cause unusual, undeserved or disproportionate hardship with
respect to their current situation in Canada.
[28]
The H&C Officer, therefore, determined that
this factor was not a sufficient reason, in and of itself, to justify the
granting of a dispensation of the requirement of applying for a permanent
resident visa from outside of Canada.
[29]
The
Applicants have not demonstrated that the H&C Officer committed an error in
her assessment of this factor.
Alleged incompetence of former
counsel
[30]
Serious allegations were made in the Applicants
memorandum with respect to the competence of her former counsel in the filing
of the H&C claim.
[31]
Such claims are not to be taken lightly as they
affect the professional reputation of the person in question.
[32]
The test for incompetent counsel is very high.
It must be shown that there is a reasonable probability that, if not for the
counsel's unprofessional errors, the result of the proceeding would be
different. (Jeffrey v. Canada (Minister of Citizenship and Immigration), 2006 FC 605, [2006] F.C.J. No. 789 (QL), para. 9 citing Shirvan
v. Canada (Minister of Citizenship and Immigration), 2005 FC 1509, [2005]
F.C.J. 1864 (QL).)
[33]
Whether or not the claims are substantiated, the
principal Applicant is nonetheless responsible for the submissions that were
made in her name.
[34]
The principal Applicant claims that her counsel
had her sign a blank copy of the H&C form. (Principal Applicant’s
Affidavit, Applicants Submissions, p. 13, para. 22.)
[35]
As an educated woman that already had
experience in filling out forms within the context of her refugee claim, it is
clear that the principal Applicant must take responsibility for her own
negligence in signing a blank document without being aware of its content. (Yilmaz
v. Canada
(Minister of Citizenship and Immigration), 2003 FC
1498, [2003] F.C.J. No. 1970 (QL), para. 34.)
[36]
Furthermore, the H&C Officer’s conclusions
regarding the absence of risk of excision for the Applicant’s daughter are not
determinative of the claim. They are but one element amongst several others
that were considered in rendering the negative decision.
[37]
The Applicants cannot therefore rely on the
alleged errors made by her former counsel in order to establish a serious issue
with respect to the H&C decision.
[38]
Considering that the Applicant failed to establish
one of the three elements of the Toth test, the existence of a serious
issue, the present motion could be denied on that alone. Nevertheless, the
analysis continues for the purpose of examining the matter in its entirety.
IRREPARABLE
HARM
[39]
For the purposes of a stay of removal,
"irreparable harm" is a very strict test. It implies the serious
likelihood of jeopardy to the Applicants life or safety. It must be more than
that which is inherent to the notion of deportation itself. (Melo v. Canada (Minister of Citizenship and
Immigration),
[2000] F.C.J. No. 403 (F.C.T.D.), paras 20-21.)
[40]
The
Applicants must support their motion with clear and convincing evidence of
irreparable harm. The evidence concerning
irreparable harm must be non-speculative and credible and there must be
a high degree of probability that the harm will in fact occur. As stated
by the Court in Ramratran v. Canada (Minister of
Public Safety and Emergency Preparedness), 2006 FC 377, [2006]
F.C.J. No. 472 (QL):
[21] As
a stay or interlocutory injunction is determined prior to the determination of
the issues on judicial review, the evidence in support of irreparable harm must
be clear and non-speculative; the Court must be satisfied that irreparable harm
will occur if the relief sought is not granted.
In this case, there is no such clear and non-speculative evidence that the mere
fact that the Applicant is going to be deported will cause irreparable harm to
any party. (Applicant's Record, Applicant's Affidavit, pp. 7-10; John
v. Canada (Minister of Citizenship and Immigration),
[1999] F.C.J. No. 915 (F.C.T.D.) (QL); Wade v. Canada
(Minister of Citizenship and Immigration), [1995] F.C.J. No.
579, paras. 3-4. (Emphasis of the Court.)
[41]
Irreparable
harm must be evaluated in relation to the country to which the Minister
proposes to return an individual.
[42]
There
is no irreparable harm in the case at bar as the Applicants are being removed
to the United
States.
[43]
The
principal Applicant’s affidavit is completely silent with respect to any harm
that she or her daughter could suffer if they are removed to the United
States
[44]
The
irreparable harm which is alleged by the Applicants is that the minor child
will endure substantial prejudice and hardship if removed from Canada because her
best interests have not adequately been considered. Given that the narrative of
the H&C Officer’s decision clearly demonstrates that she was “alive,
sensitive, and attentive” to the best interests of the minor child, this
argument has no merit. (H&C Decision, Applicants’ Record, pp. 8-9.)
[45]
Regarding
the claim that the child will not receive the kind of education in Benin that she
would eventually have access to in Canada, no irreparable harm
has been demonstrated in this respect by the Applicants.
[46]
Firstly,
the Applicants are being removed to the United States, the minor
Applicant’s country of citizenship. There is no evidence that the child’s
education would suffer in any way in that country, particularly in light of the
fact that she is not, as yet, of school age.
[47]
Secondly,
the H&C Officer conducted a proper assessment of the educational
implications for the principal Applicant’s daughter in Benin based on the
information that was available to her.
[48]
In
Vasquez v. Canada (Minister of
Citizenship and Immigration), 2005 FC 91, [2005] F.C.J. No. 96 (QL),
the Court held as follows:
[43] On the facts of this case, there
is nothing to suggest that the children would be at risk or could not
successfully re-establish themselves in Mexico or Honduras. The fact
that the children might be better off in Canada in terms
of general comfort and future opportunities cannot, in my view, be conclusive
in an H&C Decision that is intended to assess undue hardship. (Emphasis of
the Court.)
[49]
With respect to the letter from the principal
Applicant’s doctors dated January 23, 2007 (Applicant’s Submissions, p. 94)
expressing concern for her level of anxiety and her fragile psychological state
in facing deportation, reference is made to the propositions of the Court in Wade
v. Canada (Minister of Citizenship and Immigration), (1995) 29 Imm. L.R.
(2d) 163, Justice Marshall Rothstein stated:
[2] However, with
respect to irreparable harm, I have reviewed the psychologist's assessment and
I note she indicates the applicant is depressed. While I do not know all the
reasons for her depression, it seems that in part the depression relates to the
applicant's immigration status. However, that status will not be decided in
these proceedings. Whether or not the stay is granted, the applicant must still
go through a leave process;…That is going to take time and the applicant
will remain in doubt as to her status until the matter is finally resolved
sometime in the future. I am not satisfied that granting a stay will
alleviate the applicant's distress. (Emphasis of the Court.)
[50]
Furthermore, this Court has also held that,
personal difficulties do not in themselves constitute irreparable harm:
[7] The
applicant will no doubt experience serious personal inconvenience and
difficulty should he be deported. There would be a loss of educational
opportunity and he would return to India
where he no longer has any close family ties or economic prospects. However the
jurisprudence of this court, as exemplified by the decision of my colleague Mr.
Justice MacKay in Kerrutt v. M.E.I., (1992) 53 F.T.R. 93
establishes that personal difficulties do not constitute irreparable harm, as
serious as they may be to the applicant. He will not be returned to a country
where his safety or life is in jeopardy. There is no evidence that others are
dependent on the applicant.
(Chatterjee
v. Canada (Minister of Citizenship and
Immigration),
[1996] F.C.J. No. 1102 (QL).)
[51]
It
is to be noted that the evidence before the H&C officer demonstrated that
the principal Applicant arrived in Canada in a depressive and
suicidal state. The evidence also indicated that she benefited from the
psychological and social services available to her in Canada and that her
condition had stabilized at the time of her application. (H&C Decision,
Applicant’s Submissions, pp. 5-6.)
[52]
The
Respondents also note that a doctor’s letter of January 23, 2007 indicates that
the Applicant was on that date still able to continue her employment and look
after her daughter. (Applicant’s Submissions,
p.94, para. 3.)
[53]
The
fact that facing an imminent date of departure caused the principal Applicant’s
anxiety is insufficient in itself to constitute irreparable harm.
[54]
No
evidence was submitted to this Court with respect to the principal Applicant’s
access to psychological and social services in the United States, the country
to which the Applicants are being returned.
[55]
The
onus is on the principal Applicant to demonstrate that she would not have
access to the care that she might require in the United States. The
Applicant has not discharged that onus. There is no reason to believe that she
would not have access to psychological or social services in that country.
[56]
In
Suels, above, the Court had this to say in relation to an applicant’s
medical situation:
For the purpose of a stay of removal,
irreparable harm is a very strict test. Irreparable harm is very grave. The
evidence in support of irreparable harm must be clear and non speculative; the
Court must be satisfied that irreparable harm will occur if the relief is not
granted. In this case, the Applicant’s medical condition does not prevent
him from travelling by plane or otherwise. There is no evidence that
treatment for the Applicant’s medical condition which consists of
rehabilitation sessions, massage therapy, acupuncture/acupressure/myotherapy,
reassessment is not available to him in the United States or for that matter in Latvia. (Emphasis of the Court)
[57]
The
Applicants have not presented any persuasive evidence of a serious likelihood
of jeopardy to their lives or safety in the United States.
[58]
The
principal Applicant’s claims regarding the risks to be faced in Benin have already
been assessed three times. The IRB rejected the refugee claims because it found
that the principal Applicant lacked credibility. (Affidavit of Ketsia Dorceus,
Exhibit “A”.) The Applicants also applied for a Pre-Removal Risk Assessment
which was denied. (Principal Applicant’s Affidavit, Applicant’s Record, p. 14,
para. 29.) Finally, their allegations of risk of harm in Benin were
assessed and rejected by the H&C Officer within the H&C decision.
(H&C Decision, Applicant’s Record, pp. 5-8.)
[59]
It is noted that the H&C Officer examined
the evidence and concluded that the Applicant would have access to mental
health services in Benin.
(H&C Decision, Applicant’s Record, p. 6, paras. 3-5.)
[60]
In light of the arguments set out above, the
Applicants allegations are clearly insufficient to demonstrate that they will
suffer irreparable harm if they are returned to the United States, or, if they
were eventually to return to Benin.
BALANCE OF
CONVENIENCE FAVOURS THE MINISTER
[61]
A public interest exists in enforcing removal
orders in an efficient, expeditious and fair manner and in supporting the
efforts of those responsible for so doing. Only in exceptional cases will a
person’s interest outweigh the public interest.
[62]
This Court has explicitly recognized that the
Minister is under a duty to execute valid removal orders and that there is a
public interest in the prompt execution of such orders. The Court has set out
the public interest considerations underlying the assessment to be made in
regard to the balance of convenience:
What is in issue, however, when
considering balance of convenience, is the extent to which the granting of
stays might become a practice which thwarts the efficient operation of the
immigration legislation. It is well known that the present procedures were put
in place because a practice had grown up in which many many cases, totally
devoid of merit, were initiated in the court, indeed were clogging the court,
for the sole purpose of buying the appellants further time in Canada. There is
a public interest in having a system which operates in an efficient,
expeditious and fair manner and which, to the greatest extent possible, does
not lend itself to abusive practices. This is the public interest which in my
view must be weighed against the potential harm to the applicant if a stay is
not granted.
(Membreno-Garcia v. Canada (Minister of
Employment and Immigration), [1992] F.C.J. No. 535 (F.C.T.D.) (QL).)
[63]
The Applicants have not demonstrated in the
present motion that the balance of convenience favours their interests, thus,
that their interests outweigh the public interest. The Applicants have been in Canada since 2004. The principal Applicant
is a failed refugee claimant and also had a negative PRRA assessment. The
Applicants also received a negative risk opinion with regards to their H&C
application.
[64]
The Supreme Court of Canada in Canada
(Minister of Employment and Immigration) v. Chiarelli), [1992] 1 S.C.R. 711, stated:
The most fundamental principle of
immigration law is that non-citizens do not have an unqualified right to enter
or remain in the country.
[65]
In light of the arguments set out above, the
balance of convenience clearly favours the Respondents. The present motion for
a stay of removal should therefore be dismissed.
CONCLUSION
[66]
The Applicants have not demonstrated that the
balance of convenience favours the non-application of the law.
[67]
For the reasons listed above, the motion of the
Applicants to stay the execution of the removal order is dismissed.
JUDGMENT
THIS COURT
ORDERS that the motion of the Applicants to stay
the execution of the removal order be dismissed.
“Michel M.J. Shore”
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