Date: 20070611
Docket: IMM-5986-06
Citation: 2007
FC 619
Toronto, Ontario, June 11, 2007
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
ESTHER
VICTOR OBATTA
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER
[1]
The
question in this case is whether the Court should interfere with an
administrative decision not to defer a removal order which in any event cannot
be enforced at the present time because a legal stay of that order is already in
force. The answer is no; at least on the facts of this case.
[2]
Ms.
Obatta, apparently a Nigerian citizen, arrived in Montreal on an Air France flight from Paris. She was travelling on a stolen British
passport. The Canadian authorities had been alerted and were waiting for her.
She tried to bluff her way through, without success. She was ruled to be
inadmissible and a removal order was immediately issued against her. The
intention was to put her back on the plane to Paris.
[3]
However,
her story then changed. She said who she really was, and that she was pregnant.
She wanted to protect her unborn daughter from genital mutilation. She also
claimed to be having contractions. She remained in Canada that night
as the pilot would not take her on board. She was sent to a local hospital. In
due course she gave birth. Because Ms. Obatta was already subject to a removal order,
it was too late for her to claim refugee status. Her daughter, however, is a
Canadian citizen and not subject to removal. She sought leave and judicial review
of her removal order. Leave was refused.
[4]
However, the
Immigration and Refugee Protection Act (IRPA) entitled her to ask for
both a pre-removal risk assessment (PRRA) and to apply for permanent status
from within Canada on humanitarian and compassionate
grounds (H&C). She did both. No decision has been rendered on either
application.
[5]
An
H&C application does not, by mere operation of law, give rise to a stay of
a removal order. If
a failed refugee claimant applies for a PRRA, the application normally triggers
an automatic stay of any removal order. However, pursuant to section 166 of
the Immigration and Refugee Protection Regulations, however, when a
removal order is made at a port of entry following a determination of
inadmissibility, a PRRA application does not automatically generate a stay. A stay may be
obtained administratively from an immigration officer, or judicially from the
Court.
[6]
She asked the
removals officer to administratively stay her departure pending the outcome of
her PRRA and H&C applications. The officer refused. That decision is the subject
of the present judicial review.
THE UNDERLYING DECISION
[7]
The
reasons for the officer’s decision are to be found in a note to file of 8
November 2006, as well as in earlier notes of 2 November and 6 November. A
number of reasons were given. The ones I consider relevant are that no date had
yet been fixed for her removal. The second was that if removed, it was Ms.
Obatta’s intention to take her daughter with her. They were awaiting a needed
Canadian passport for her baby. The third is that there was a statutory stay
against removing Ms. Obatta because she was subject to criminal charges. This
gave rise to an automatic stay by virtue of section 50 of IRPA.
[8]
There were
other reasons given which bear little or no weight. One is that a travel
document had to be obtained for Ms. Obatta before the pre-removal risk could be
assessed. However, the Nigerian High Commission indicated that a document would
be issued on request. Another reason was that the officer said she took the
interests of the child into account. This was a bald statement, with no
particulars whatever given.
ISSUES
[9]
On behalf
of Ms. Obatta it is submitted that the removals officer failed to provide
adequate reasons and failed to properly exercise her discretion.
[10]
The
Minister agrees these are relevant issues, but submits that the removals
officer acted appropriately. He further suggests that the application should be
dismissed as being moot, and also because Ms. Obatta does not come to Court
with clean hands.
[11]
I add
another issue: the extent to which reference should be made to material that
was not before the removals officer.
DISCUSSION
[12]
Neither
party paid much heed to the general principle that a judicial review of a
decision is based on the material which was before the decision-maker. Both
parties have gone to considerable lengths to inform the Court as to what has
happened since the decision in November 2006. The Minister takes the position
that no decision has been taken in the PRRA application and perhaps in the
H&C as well, because Ms. Obatta has not been cooperative in obtaining proper
documentation. Furthermore, although the criminal charges could be stayed so
that section 50 of IRPA would no longer be an impediment, the charges are not
going to be stayed because there is a fresh second criminal charge against her.
[13]
Ms. Obatta
claims that the Minister is sitting on his hands. Decisions should have been
made by now, particularly considering the terrible risk her daughter faces should
she go to Nigeria. However Ms. Obatta must
realize that although she gained Canadian citizenship for her daughter by
coming here under false pretences, should she make arrangements to leave her
daughter here, it does not necessarily follow that the best interests of the
child mean that the mother also remain.
[14]
However,
none of these facts are relevant in assessing the appropriateness of the November
2006 decision.
[15]
The
officer was correct in law in stating that the pending criminal charges
operated as a statutory stay. It is speculative on Ms. Obatta’s part to say
that the Court should nevertheless proceed because those charges could be
stayed.
[16]
The
officer correctly understood the jurisprudence of this court to the effect that
it is premature to seek a stay before a date for removal has been fixed. Although
Mr. Justice Rothstein was speaking of a judicial stay as opposed to an
administrative stay, a stay should not be granted before the Minister fixes an
actual date for removal. He laid out this rule in Rajan v. Canada (Minister of Employment and
Immigration)
(1994), 86 F.T.R. 70, [1994] F.C.J. No. 1618 (QL) where he said at paragraph
12:
In respect of the application for
an order directing the respondent not to require the applicant to leave Canada,
I think this application is premature. If the applicant does not
leave Canada of her own volition, as I earlier indicated, a stay application
may be brought when the applicant is advised by the respondent as to when she
must leave. This aspect of the stay application therefore must also
be dismissed.
[17]
Furthermore
the officer did exercise some discretion in that she did not attempt to
separate Ms. Obatta from her child, and indicated that there would be no
removal before the child was issued a Canadian passport.
[18]
Consequently
I have come to the conclusion that the application is both premature and moot.
I see no reason to nevertheless exercise my discretion to determine a moot
point.
[19]
One does
not know the outcome of the criminal charges, or whether they will be stayed,
or when or how the PRRA and H&C applications will be decided. If, as and when
a date for Ms.Obatta’s departure is fixed, the PRRA and H&C applications
are not fully resolved, she can then ask the removals officer for an administrative
stay. That stay may be granted, or it may not. If it is not granted, she is
then entitled to seek a fresh application for leave and for judicial review,
and to seek a judicial stay in the interim. At that time due consideration can
be given to “clean hands” or “sitting on hands”. The applicant has until Tuesday,
19 June 2007 to propose a question of general importance, and the respondent
until Friday, 22 June 2007 to reply.
“Sean Harrington”
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