Date: 20070614
Docket: IMM-2277-07
Citation: 2007 FC 626
Ottawa, Ontario, June
14, 2007
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
JEFFERSON VIEIRA,
MARCIA LIMA VIEIRA
Applicants
and
MINISTER OF PUBLIC SAFETY AND
EMERGENCY
PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1]
There is no legal basis or foundation for the Applicants’
assertion that a fiduciary relationship exists between a person without status in
Canada and the Canadian government, based upon purported statements made by a
Minister of the former government in regard to possible or potential changes to
the Canadian immigration system. Neither the former government nor the current
one enacted any legislation, nor did it put into effect any rules or
regulations in regard to such purported statements. The Applicants have shown
no legal basis for their assertion. An assertion by the Applicants, selectively
referring to cases in respect of a fiduciary duty in a non-immigration context,
does not make it such. (The exception is Medawatte v. Canada
(Minister of Public Safety and Emergency Preparedness), 2005 FC 1374,
[2005] F.C.J. No. 1672 (QL), and that is an immigration case which deals with
solicitor negligence in a very different context than the present one, as
discussed in paragraphs 27 to 33 inclusively.)
In regard to the notion of fiduciary duty, significant note
is taken of the following jurisprudence, excerpts of which are quoted below:
[6] I take the view that
this action sounds solely in negligence. In argument, plaintiff's counsel
attempted to assert claims based upon alleged breach of fiduciary duty, but not
only was such breach not alleged, and therefore, cannot now be relied upon, but
also in my view, there are no facts shown by the plaintiff which would support
the essentials of a claim for breach of fiduciary duty. The plaintiff has not
shown that he was particularly vulnerable, indeed the material before me
indicates quite clearly that from an early stage after his arrival in Canada,
he obtained the assistance of legal aid and had legal advice given to him. In
my view, while it is true that the categories of fiduciary duty are not closed,
they do not include the duties owed by Immigration Officials to immigrants who
are in a position to and do obtain legal assistance for their dealings with the
Department.
(Farzam
v. Canada (Minister of Citizenship and Immigration), 2003 FCT 140, [2003] F.C.J. No. 203 (QL).)
It should be noted that fiduciary
duties generally arise only with regard to obligations originating in a private
law context. Public law duties, the performance of which requires the exercise
of discretion, do not typically give rise to a fiduciary relationship…
(Guérin v. Canada, [1984] 2 S.C.R. 335.)
JUDICIAL PROCEDURES
[2]
The Applicants, citizens of Brazil,
have been in Canada without status due to remaining beyond the period
permitted by their visas. They filed a Humanitarian and Compassionate
(H&C) application in 2003 which was refused
in February 2005, and the Applicants were issued exclusion orders in June 2005.
They subsequently hired Worker Canada to assist in regularizing their status.
In February 2006, the Applicants submitted a Pre-Removal Risk Assessment (PRRA)
application alleging a fear of return to Brazil, and later made their submissions in support. In
March 2007, the Applicants submitted a second H&C application which
included allegations of past negligence and inadequate advice on the part of
counsel for Worker Canada. The PRRA was rejected and a decision to that effect
was given to the Applicants in person on May 14, 2007, together with a
Direction to Report for removal. No application for leave has been filed from
the negative PRRA and the time for doing so has expired. A new Direction to
Report for Removal was issued on May 17 with a removal date of June 14, 2007.
[3]
The Applicants submitted a request
for deferral on May 28, 2007, with further submissions on May 31, 2007,
requesting that removal be deferred due to the recently filed second H&C
application. The Applicants alleged they would have filed the H&C
application much earlier except for the inadequate advice they received from
counsel for Worker Canada. The Officer declined to defer removal on the basis
of an H&C application that had only recently been filed. The Applicants
have not met the test for a granting of a stay of removal as they have shown no
serious issue on any standard and certainly not, on the elevated standard to be
considered with regards to the Removal Officer’s decision. Furthermore, they
have not shown irreparable harm as the allegations of risk in Brazil have
already been considered and rejected in the context of their PRRA Application.
BACKGROUND
[4]
The Applicants entered Canada as visitors in 1998. An H&C
application was filed in 2003 with a spouse included as a related dependant on
the application; the H&C application was refused in February 2005. The
Applicants were issued exclusion orders in June 2005.
[5]
Rather than file another H&C application, the Applicants
signed on with Worker Canada, an entity which was (unsuccessfully) attempting
to work towards regularizing the status of their clients.
[6]
The Applicants filed a PRRA application in February 2006. They
received a negative decision in person on May 14, 2007, together with a
Direction to Report for removal. The Applicants subsequently purchased their
own tickets and a new Direction to Report was issued on May 17, 2007, with a
removal date of June 14, 2007 at 11:10 p.m. Leave has not been sought with
respect to the negative PRRA and the time for doing so has expired. (PRRA
Decision; Affidavit of Salima Sajan sworn June 11, 2007, Exhibit “A”; Direction
to Report for Removal, Affidavit of Salima Sajan, Exhibit “B”.)
[7]
On May 28, 2007, the Applicants
faxed a request for a deferral of removal based upon a new H&C application
having been submitted in March 2007. The Officer thoroughly considered all the
submissions and evidence and determined that the existence of the recently
submitted H&C application was not a sufficient basis on which to defer
removal. The Applicants were advised of the decision by letter dated June 4,
2007, and also provided the Notes to File explaining the rationale for the
refusal. (Refusal letter and Notes to File, Applicant’s Record, at pp. 3 and 9-12.)
[8]
The Applicants subsequently filed
the within motion for a stay of removal with regards to the Officer’s refusal
to defer.
ISSUE
[9]
Have the Applicants
demonstrated that they meet the tri-partite test for granting a stay of the
removal from Canada?
ANALYSIS
Preliminary matter
[10]
The Applicants state in the notice of motion that it is for an Order
amending the application for leave. The Applicants have provided no information
as to any amendments requested to be made nor any submissions in support of the
request. If that is actually the Applicants’ intention rather than a
typographical error, the Applicants have failed to address or justify, any
amendment to the application for leave. The Court will therefore proceed on the
basis that this motion is solely for a stay of removal.
Test for
granting a stay
[11]
In accordance with the jurisprudence of this Court, in
order for the Applicants to succeed on this motion, they must demonstrate that
all of the three elements of the tri-partite test identified by the Federal
Court of Appeal in Toth v. Canada (Minister
of Employment and Immigration) (F.C.A.), [1988] F.C.J. No. 587 (QL), have been established.
Accordingly, the Applicants bear the burden of establishing that (i) a serious
issue will be tried; (ii) they will suffer irreparable harm if the removal
order is executed; and (iii) the balance of convenience favours them rather
than the Minister. (RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 (QL).
[12]
The Applicants have not
demonstrated that they meet the tri-partite test for granting a stay of their
removal from Canada. In particular, they have not demonstrated that there
is a serious issue to be tried in respect of the Enforcement Officer’s decision
not to defer their removal, they will not suffer irreparable harm if removed to
Brazil, and the balance of convenience favours the Minister.
[13]
The requirements of the tripartite test are conjunctive. That is,
the Applicants must satisfy all three branches of the test before this Court
can grant a stay of proceedings. (Toth, above; RJR-MacDonald,
above.)
[14]
The issuance of a stay is an extraordinary remedy wherein the
Applicants need to demonstrate “special and compelling circumstances” that
would warrant “exceptional judicial intervention”. The usual finding is to the
effect that Applicants are not entitled to a stay. Tavaga v. Canada
(Minister of Employment and Immigration) (1991), 15 Imm. L.R. (2d) 82
(F.C.T.D.), [1991] F.C.J. No. 614 (QL); Shchelkanov v. Canada (Minister of
Employment and Immigration) [1994] F.C.J.
No. 496 (F.C.T.D.) (QL); Canada (Minister of Citizenship and Immigration) v. Harkat,
2006 FCA 215, [2006] F.C.J. No. 934 (QL), at para. 10.)
[15]
If the Applicants fail in any branch of the test, there is no need to
review the other branches of the test. (Canada (Minister of Citizenship and Immigration) v. Fast, 2002 FCA 292, [2002] F.C.J.
No. 1036 (QL), at para. 8.)
[16]
The Applicants have failed to demonstrate special or compelling
circumstances in this case that would warrant deferral of removal or judicial
intervention. The Applicants have failed to demonstrate any serious issue with
respect to the Enforcement Officer’s decision not to defer their removal.
SERIOUS ISSUE
Threshold to
demonstrate serious issue high
[17]
The threshold for the serious issue branch of the tripartite test is
“not frivolous and vexatious”; however, because the granting of the Applicants’
motion would effectively give them the relief they seek in their underlying
application for leave and for judicial review, it is well-established that this
Court must engage in a more extensive review of the merits of the application.
This has been confirmed in Wang v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 148, [2001] F.C.J. No.
295 (QL), at para. 11.), wherein Justice Denis Pelletier held that the
threshold for the serious issue branch of the tripartite test in motions such
as the one at bar is not frivolous and vexatious, but rather, the
"likelihood of success.". (Reference is also made to RJR Macdonald,
above.)
[18]
The Applicants argue that a serious issue is raised from the
enforcement officer’s refusal to defer removal in the face of the Applicants’
pending second H&C application, in light of the circumstances set out therein,
and in light of purported “promises and statements made by pending Immigration
Ministers” which the Applicants submit they relied upon. The Applicants have
failed to demonstrate a serious issue on the elevated threshold of “likelihood
of success”.
[19]
Removal Officers’ decisions should be accorded a great deal of
deference. Applying the pragmatic and functional approach, the Court held in Zenunaj
v. Canada (Minister of Citizenship and Immigration), 2005 FC
1715, [2005] F.C.J. No. 2133 (QL), at paras. 19-22, that the appropriate
standard of review for decisions on deferral requests is that of patent unreasonableness.
This standard has been followed in many other cases, and is consistent with paragraph
18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7, which
provides for judicial review only if the Officer “based its decision or order
on an erroneous finding of fact that it made in a perverse or capricious manner
or without regard for the material before it." (Reference is also made to Haghighi v. Canada (Minister of Public Safety and
Emergency Preparedness), 2006 FC 372, [2006] F.C.J. No. 470 (QL), at paras.
6-7; Griffiths v. Canada (Solicitor General), 2006 FC 127, [2006] F.C.J.
No. 182 (QL), at para. 16; Adomako v. Canada (Minister of Public
Safety and Emergency Preparedness), 2006 FC 1100, [2006] F.C.J. No. 1384
(QL), at para. 11; Munar v. Canada (Minister of Citizenship
and Immigration), 2006 FC 761, [2006] F.C.J.
No. 950 (QL), at para. 13; Chir v. Canada (Minister of Public Safety and
Emergency Preparedness), 2006 FC 242, [2006] F.C.J. No. 317 (QL), at paras.
13-14; Uthayakumar v. Canada (Minister of Citizenship and
Immigration), 2006 FC 90, [2006] F.C.J. No. 107 (QL), at para. 32;
J.B. v. Canada (Minister of Citizenship and Immigration), 2004 FC
1720, [2004] F.C.J. No. 2094 (QL), at paras. 23-25; Arroyo v. Canada
(Minister of Public Safety and Emergency Preparedness), 2006 FC 260, [2006]
F.C.J. No. 342 (QL), at para. 20; Hailu v. Canada (Solicitor General),
2005 FC 229, [2005] F.C.J. No. 268 (QL), at para. 12; Prasad v. Canada
(Minister of Citizenship and Immigration), 2003 FCT 614, [2003] F.C.J. No. 805 (QL), at para.
56.)
[20]
The discretion that a Removal officer may exercise is very limited, and
in any case, is restricted to when a removal order will be executed. In
deciding when it is "reasonably practicable" for a removal order to
be executed, a removal officer may consider various factors such as illness,
other impediments to travelling, and perhaps in cases of long-standing
applications that were brought on a timely basis but have yet to be resolved.
[21]
In this case, however, the second H&C application was not filed on a
timely basis. The Applicants have known since the day they overstayed and at
the latest, since June 2005, when they received the exclusion order that they
were clearly at risk of removal from Canada; nevertheless, they waited until
March 2007 (only three months ago) when removal was essentially imminent to
submit a second H&C application. They instead chose to hire a company that
was unsuccessfully attempting to have the status of their various clients
regularized based upon some potential immigration policy changes, that were
never put into place by the past or current government. An Applicant should not
be able to hinder removal by waiting until essentially the last minute to file
an H&C application. (Maharaj v. Canada (Minister of Citizenship and
Immigration), 2001 FCT 509, [2001] F.C.J. No. 786 (QL), at para. 5; Simoes
v. Canada (Minister of Citizenship and Immigration), [2000]
F.C.J. No. 936 (F.C.T.D.) (QL).)
[22]
As Justice Richard Mosley recently
stated in Chavez v. Canada
(Minister of Public Safety and Emergency Preparedness), 2006 FC 830, [2006] F.C.J. No. 1059 (QL):
[18] A removals officer's
discretion is limited to considering compelling personal circumstances that may
preclude the exercise of the Minister's duty to enforce the Act. Subsection
48(2) provides that "[i]f 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." There is no obligation on
the part of the officer to defer removal pending an H&C application. To
hold otherwise, as Justice Simon Noël has observed, "would, in effect,
allow claimants to automatically and unilaterally stay the execution of validly
issued removal orders at their will and leisure by the filing of the
appropriate application. This result is obviously not one which Parliament
intended": Francis v. Canada (Minister of Citizenship and
Immigration) [1997] F.C.J. No. 31 at paragraph 2 (T.D.) (QL).
[23]
Moreover, section 50 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), sets out the
circumstances in which, by operation of law, a removal order is stayed.
Parliament could have provided for a stay where an H&C was filed but choose
not to. Section 48 is also very clear about the duty to remove as soon as
reasonably practicable.
[24]
The Applicants sought to excuse to the Officer their failure to
file a second H&C application earlier on the basis of inadequate legal
advice. The Applicants also stated that instead of filing another H&C
application, they became “registered clients of Worker Canada, that was relying
on promises and statements made by pending Immigration Ministers in order to
obtain status for their clients.” Counsel states that “the Ministers did not
comply with statements and promises …” (Letter requesting a deferral of
removal, Affidavit of Salima Sajan Exhibit “C”.)
[25]
With regard to the Applicants’ asserted reliance on purported
statements and promises they were advised were made by a former Minister, there
are, every year, statements made about possible changes to immigration plans
and policies. Some of those are occasionally adopted in some form by the
government while many others are not. Furthermore, there was not and is a
moratorium on removals of people in the Applicant’s position. Parliament was
dissolved in November 2005 and the current government was elected in January
2006. The Applicant has provided no basis or reasons for not having filed a new
H&C shortly after the current government came to power, well over a year
ago, instead waiting until shortly before receiving the negative PRRA decision
to file a new H&C.
[26]
What is before this Court is simply and solely the Officer’s
refusal to defer removal within the narrow limits of her discretion pursuant to
the IRPA and as stated by Justice Mosley in Chavez, above.
The Applicants alleging
solicitor incompetence despite their assertion to the contrary
[27]
The Applicants submit that they are not alleging ineffective
representation. Instead they are asserting that the action taken on their
behalf by Worker Canada resulted from statements purported to be on a
Ministerial level. Contrary to the Applicant’s assertions they are in fact
alleging inadequate or negligent representation, as the evidence shows they
have been all along. They allege that they relied upon the actions and
assurances of a third party representing them (specifically Worker Canada’s
counsel) which was purportedly relying on statements from a previous Minister
about possible changes to Canadian immigration. Furthermore, counsel’s
submissions to the Officer requesting a deferral of removal explicitly state
that the reason the Applicants did not file their second H&C long ago was
due to having received what they now consider to be inadequate legal advice.
The letter states:
The Applicants take the position
that they would have filed an H & C that would have been pending for
an unusually long time, had they not received legal advice that they now
find inadequate...The Federal Court of Canada has allowed for the
overturning of a decision because of allegations of negligence against Counsel.
(Emphasis added.)
(Letter
dated May 25, 2007 requesting deferral of removal Affidavit of Salima Sajan,
Exhibit “C”.)
[28]
Similarly in the H&C submissions at pages 37 and 38 of the
“further evidence” the Applicants referred in the H&C submission to relying
on counsel Mr. Richard Boraks, that he lied to them, would not return their
calls, and was drunk at the last meeting they had with him, on some unspecified
date (i.e. they were inadequately represented).
[29]
The jurisprudence is clear that an applicant must be held to
their choice of adviser and further, that allegations of professional
incompetence will not be entertained unless they are accompanied by
corroborating evidence. Such evidence usually takes the form of a response to
the allegation by the lawyer in question, or, a complaint to the relevant Bar Association.
In this case, the Applicants have made an assertion, without providing any
evidence in support of their allegation. A failure to provide notice and an
opportunity to respond to counsel whose professionalism is being impugned is
sufficient to dismiss any allegations of incompetence, misfeasance or
malfeasance. (Nunez v. Canada (Minister of Citizenship and
Immigration), (2000) 189 FTR 147, [2000] F.C.J. No. 555 (QL), at para. 19; Geza
v. Canada (Minister of Citizenship and Immigration), (2004) 257 FTR
114, [2000] F.C.J. No. 1401 (QL), Shirvan v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1509, [2005] F.C.J. No. 1864 (QL), at
para 32; Nduwimana v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1387, [2005] F.C.J. No. 1736 (QL); Chavez,
above.)
[30]
More importantly, the Applicants freely made the choice to become
clients of Worker Canada rather than file another H&C application. That
does not however change the fact that they were subject to removal orders. As
the Officer noted:
… I am satisfied that Mr. and
Mrs. Vieira understood that an H&C application was required of them in
order to regularise their status. The fact that they became registered clients
of Worker Canada instead of applying for an H&C is unfortunate. The
correspondence from WorkerCanada and Richard Boraks clearly indicated that the
main goal for WorkerCanada was to obtain status for their clients. The fact
that WorkerCanada was relying on potential immigration policy changes to
regularize their clients status does not change the fact that Mr. and Mrs.
Vieira were still subject to removal orders and needed to regularize their status
in order to remain in Canada. (Emphasis added.)
(Notes to File, Applicant’s Record pp. 11-12.)
[31]
The Applicants acknowledge all in which they had knowingly participated,
notwithstanding all signs and information to the contrary. This included having
been notified on, at least two occasions, in June 2005, after receiving the
negative H&C when they were advised about voluntary departure (and issued
an exclusion order), and when having been given the opportunity to file a PRRA
in 2006. Furthermore, in addition to the significant and extensive media
coverage of removals of undocumented workers in early 2006, including a March
9, 2006 letter from Mr. Boraks which clearly explains to Worker Canada
clients that removals of “undocumented workers” were taking place. (Applicant’s
Further Evidence, at p. 22.)
[32]
The Applicants were entitled to make the choice they did;
however, their attempt to regularize their status should not be allowed to
hinder or impede the Minister’s duty to enforce the provisions of the IRPA, including
those dealing with enforcements and removals. In Prassad v. Canada (Minister
of Employment and Immigration), [1989] 1 S.C.R. 560, a majority of the Supreme
Court of Canada held that the enforcement provisions of then Immigration Act,
R.S.C. 1985, c. I-2, could not be undermined or impeded by an applicant’s
attempt to normalize or regularize his/her stay in Canada. The reasoning
applies with the same force to the IRPA.
[33]
There is no legal basis or foundation for the Applicants’
assertion that a fiduciary relationship exists between a person without status in
Canada and the Canadian government, based upon purported statements made by a
Minister of the former government in regard to possible or potential changes to
the Canadian immigration system. Neither the former government nor the current
one enacted any legislation, nor did it put into effect any rules or
regulations in regard to such purported statements. The Applicants have shown
no legal basis for their assertion. An assertion by the Applicants, selectively
referring to cases in respect of a fiduciary duty in a non-immigration context,
does not make it such. (The exception is Medawatte, above, and
that is an immigration case which deals with solicitor negligence in a very
different context than the present one, as discussed in paragraphs 27 to 33
inclusively.)
In regard to the notion of fiduciary duty, significant note
is taken of the following jurisprudence, excerpts of which are quoted below:
[6] I take the view that
this action sounds solely in negligence. In argument, plaintiff's counsel
attempted to assert claims based upon alleged breach of fiduciary duty, but not
only was such breach not alleged, and therefore, cannot now be relied upon, but
also in my view, there are no facts shown by the plaintiff which would support
the essentials of a claim for breach of fiduciary duty. The plaintiff has not
shown that he was particularly vulnerable, indeed the material before me
indicates quite clearly that from an early stage after his arrival in Canada,
he obtained the assistance of legal aid and had legal advice given to him. In
my view, while it is true that the categories of fiduciary duty are not closed,
they do not include the duties owed by Immigration Officials to immigrants who
are in a position to and do obtain legal assistance for their dealings with the
Department.
(Farzam,
above.)
It should be noted that fiduciary
duties generally arise only with regard to obligations originating in a private
law context. Public law duties, the performance of which requires the exercise
of discretion, do not typically give rise to a fiduciary relationship…
(Guérin, above.)
IRREPARABLE HARM
[34]
Should this Court find that there is a serious issue, the
Applicants must still support their motion with clear and convincing evidence
of irreparable harm. Irreparable harm is a strict test in which serious
likelihood or jeopardy to the Applicants’ life or safety must be demonstrated.
Further, irreparable harm must not be speculative nor can it be based on a
series of possibilities. In this case, there
is no such clear and non-speculative evidence that the fact that the Applicants
are going to be deported will cause irreparable harm to any party. (Grant
v. Canada (Minister of Citizenship and Immigration), 2002 FCT 141, [2002]
F.C.J. No. 191 (QL); Mikhailov v. Canada
(Minister of Citizenship and Immigration), [2000]
F.C.J. No. 642 (QL); Kazmi v. Canada (Minister
of Citizenship and Immigration), Doc. No.
IMM-2126-04, (16 March 2004) (T.D.).)
[35]
In order to demonstrate that the harm alleged is irreparable, the
Applicants must show that the harm would occur between the time their stay
application is denied and the positive decision on their application for leave
and for judicial review, or, alternatively, in the time following any positive
determination of that application. (Bandzar v. (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 772 (F.C.T.D.) (QL); Ramirez-Perez v. (Minister of Citizenship and Immigration), [2000] F.C.J. No. 724 (F.C.T.D.) (QL).)
Risk allegations already
considered by a PRRA Officer, and the PRRA application was denied
[36]
The Applicants allege fears of a return to Brazil; however, those
same allegations of risk have already been assessed by a PRRA Officer, and they
were found not to be at risk if returned to Brazil. Leave has not been sought
from the PRRA decision and the time to do so has passed. Accordingly, as the
sole basis for a claim of irreparable harm has already been considered and
rejected, the Applicants have not shown irreparable harm. (PRRA Decision,
Affidavit of Salima Sajan, Exhibit “A”.)
Inherent consequences of removal is not irreparable
harm
[37]
The Federal Court of Appeal has held that irreparable harm is
more than the unfortunate hardship associated with the relocation of the family.
As Justice John Maxwell Evans stated in Selliah
v. Canada (Minister of Citizenship and Immigration), 2004 FCA 261, [2004]
F.C.J. No. 1200 (QL):
[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:
(Reference
is also made to Lewis v. Canada (Minister of Citizenship and Immigration), 2003 FC 1271, [2003] F.C.J. No. 1620 (QL), at para. 9; Aquila v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 36 (T.D.) (QL), at para. 12; Wang, above,
at para. 48; Frankowski v. Canada (Minister of Citizenship and
Immigration), [2000] F.C.J. No. 935 (T.D.) (QL), at para. 7.)
[38]
Irreparable harm must be
something more than the inherent consequences of deportation. As Justice
Pelletier stated in Melo v. Canada
(Minister of Citizenship and Immigration), [2000] F.C.J. No. 403 (T.D.)
(QL):
[21] …if the phrase
irreparable harm is to retain any meaning at all, it must refer to some
prejudice beyond that which is inherent in the notion of deportation itself. To
be deported is to lose your job, to be separated from familiar faces and
places. It is accompanied by enforced separation and heartbreak…
[39]
The Federal Court of Appeal cited Selliah and Melo with
approval in Atwal v. Canada (Minister of Citizenship and
Immigration), 2004 FCA 427, [2004] F.C.J. No. 2118 (QL), and reiterated
that a “series of possibilities” and “the usual consequences of deportation”
are insufficient to justify a stay:
[14] Irreparable harm must constitute more than a series of
possibilities. The onus is on the appellant to demonstrate in the evidence
that the extraordinary remedy of a stay of removal is warranted.
…
[16] The irreparable harm claimed by the appellant with regard to
loss of job and separation from his family consists of the usual consequences
of deportation. It is not of the type contemplated by the three-stage test for
granting a stay…
(Emphasis added.)
Outstanding
H&C application does not constitute irreparable harm.
[40]
This Court has found on many occasions that an outstanding H&C
application does not constitute irreparable harm. Any person can file an H&C,
any number of times, at any time. If a pending H&C application could be
characterized as irreparable harm, then any person could file an H&C
application repeatedly and therefore indefinitely defer removal. This is not
the intention of the Act or Parliament and these Applicants should not be
permitted to defer their removal because they chose to file an H&C when
their removal was imminent. The H&C application will continue to be
processed and if positive they can return to Canada after removal. (Gakou v Canada
(Solicitor General), 2005 FC 1267, [2005] F.C.J. No. 1528 (QL).)
[41]
The Applicants have failed to establish any genuine possibility of
irreparable harm. They filed their second H&C only recently, it will
continue to be processed after removal, and the stated fear of return have been
thoroughly considered by the PRRA Officer who rejected their application. In
the absence of specific evidence of irreparable harm, the second element of the
tri-partite test has not been met.
BALANCE OF CONVENIENCE
[42]
If the person seeking a stay order does not establish that he or she
will suffer irreparable harm if his or her removal is not stayed, the balance
of convenience will favour not staying the removal because staying the removal
must be assumed to cause irreparable harm to the public interest. (Hill v. Canada
(Minister of Fisheries and Oceans (March 17, 2000) T-284-00 (F.C.T.D.). Dugonitsch
v. Canada (Minister of Employment and Immigration), [1992]
F.C.J. No. 320 (F.C.T.D.) (QL).)
[43]
Furthermore, the balance of convenience does not automatically flow from
a finding of serious issue and irreparable harm. The Supreme Court of Canada
has stated that each part of the tri-partite test must be established
individually. In a recent decision of this Court, Justice Conrad von
Finckenstein stated "without commenting on the sufficiency of the
Applicant’s case, this application must be dismissed for failure to meet the
balance of convenience...." (Dasilao v. Canada (Solicitor
General), 2004 FC 1168, [2004] F.C.J. No. 1410 (QL), at para. 4.)
[44]
In Dugonitsch, Justice Andrew MacKay set out the considerations
pertinent to assessing balance of convenience:
That public interest supports the
maintenance of statutory programs and the efforts of those responsible for
carrying them out. Only in exceptional cases will the individual's interest,
which on the evidence is likely to suffer irreparable harm, outweigh the public
interest. This is not such an exceptional case.
(Reference
is also made to Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110, at 146.)
[45]
The inconvenience which the Applicants may suffer as a result of their
removal from Canada does not outweigh the public interest in executing removal
orders as soon as reasonably practicable in accordance with subsection 48(2) of
the IRPA. The Minister’s obligation under subsection 48(2) of the IRPA is not
simply a question of administrative convenience, but implicates the integrity
and fairness of, and public confidence in, Canada’s system of immigration
control.
Subsection
48(2) of the IRPA
[46]
Every year this Court hears hundreds of stay applications. Although
illegal, many applicants are hard working, law-abiding individuals who are
simply here in order to improve their lives and the lives of their families. Nonetheless,
in order to uphold the immigration scheme and the law, this Court is required
to dismiss the motions of most of these would be immigrants. In dismissing a
motion for a stay, the Federal Court of Appeal in Selliah, above, stated:
[21] Counsel says that since the appellants have no criminal
record, are not security concerns, and are financially established and socially
integrated in Canada, the balance of convenience favours maintaining the status
quo until their appeal is decided.
[22] I do not agree. They have had three negative administrative
decisions, which have all been upheld by the Federal Court. It is nearly four
years since they first arrived here. In my view, the balance of convenience
does not favour delaying further the discharge of either their duty, as persons
subject to an enforceable removal order, to leave Canada immediately, or the
Minister's duty to remove them as soon as reasonably practicable: IRPA,
subsection 48(2). This is not simply a question of administrative convenience,
but implicates the integrity and fairness of, and public confidence in, Canada's
system of immigration control.
CONCLUSION
[47]
For all of the above reasons, the Motion for the stay
of removal is dismissed.
ORDER
THIS COURT ORDERS that motion for the stay of removal be
dismissed.
“Michel M.J. Shore”
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