Date: 20070613
Docket: IMM-2323-07
Citation: 2007
FC 627
Ottawa, Ontario, June 13, 2007
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
RASANATH
ESCALONA PEREZ
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1]
A removals
officer cannot defer removal for just any proceeding in the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA), for which he/she is not
the mandated decision-maker. The removals officer does not have the
jurisdiction to make a renewed refugee assessment, nor a Pre-Removal Risk
Assessment (PRRA), nor a decision on humanitarian and compassionate (H&C)
grounds, nor, is he mandated to determine judicial reviews or appeals of any of
the preceding or other procedures. A removals officer is solely mandated with
the discretion to defer removal for reasons associated with the challenges of
arranging international travel. The Court in Wang v. Canada
(Minister of Citizenship and Immigration), 2001 FCT 148, [2001]
F.C.J. No. 295 (QL), explained
how very limited the discretion is:
[45] The order whose
deferral is in issue is a mandatory order which the Minister is bound by law to
execute. The exercise of deferral requires justification for failing to obey a
positive obligation imposed by statute. That justification must be found in the
statute or in some other legal obligation imposed on the Minister which is of
sufficient importance to relieve the Minister from compliance with section 48
of the Act…
…
[48] …At its widest, the
discretion to defer should logically be exercised only in circumstances where
the process to which deferral is accorded could result in the removal order
becoming unenforceable or ineffective. Deferral for the mere sake of delay is
not in accordance with the imperatives of the Act. One instance of a policy
which respects the discretion to defer while limiting its application to cases
which are consistent with the policy of the Act, is that deferral should be
reserved for those applications or processes where the failure to defer will
expose the applicant to the risk of death, extreme sanction or inhumane
treatment in circumstances and where deferral might result in the order
becoming inoperative.
[2]
The public
interest is to be taken into account and weighed together with the interests of
private litigants. (Manitoba (Attorney General) v. Metropolitan Stores (MTS)
Ltd., [1987] 1 S.C.R. 110.)
[3]
In the
Federal Court of Appeal decision in Selliah v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 261, [2004] F.C.J. No. 1200 (F.C.A.)
(QL), Justice John Maxwell Evans found that since the Appellants had received a
number of administrative decisions, which had been upheld by the Federal Court,
in his view, the balance of convenience did not favour delaying further
discharge of the Minister’s duty, or the Appellant’s duty as persons subject to
an enforceable removal order, to leave Canada immediately. Justice Evans
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.
[4]
The
Applicant is a non-citizen who has had the benefit of two administrative
decisions assessing risk. He had a negative refugee claim and a negative PRRA.
His application to this Court for judicial review of his negative PRRA was
dismissed. The Applicant has not demonstrated that the balance of convenience
favours the non-application of the law or outweighs the public interest. (Dasilao
v. Canada (Minister of Citizenship and
Immigration),
2004 FC 1168, [2004] F.C.J. No. 1410 (QL).)
JUDICIAL PROCEDURE
[5]
The
Applicant seeks a stay of execution of the removal order made against him,
scheduled to be executed on Wednesday, June 13, 2007 at 2:20 p.m., until such
time as his application for leave and for judicial review can be determined,
and if successful, until the subsequent reconsideration of the deferral request
has been completed.
BACKGROUND
[6]
The
Applicant, now twenty-four years old, arrived in Canada on April 15, 1990 at the age of seven, as
a visitor with valid visa status until October 14, 1990.
[7]
On May 21,
2002, the Applicant made a claim for refugee protection. A section 27 report
was completed and a conditional departure order was issued against the
Applicant.
[8]
On October
21, 2002, the Applicant’s refugee claim was deemed abandoned. The Applicant was
directed to report for a removal interview on January 8, 2003 and failed to
attend.
[9]
On
February 9, 2003, the Applicant was arrested on an immigration warrant. The
Applicant presented evidence that his refugee claim was deemed abandoned in
error and that his hearing was scheduled for February 18, 2003.
[10]
On
September 3, 2003, the Applicant was charged with assault.
[11]
On January
15, 2004, the Applicant received a conditional discharge for an assault charge
and was placed on probation for one year.
[12]
On June
22, 2004, the Applicant’s refugee claim was denied.
[13]
On July 8,
2004, the Applicant filed an application for leave and for judicial review
challenging the negative refugee decision. On October 28, 2004, leave was
denied.
[14]
On March
27, 2005, the Applicant was arrested by immigration authorities and released on
a cash bond of $3,000 and conditions. At the time, it was noted that the
Applicant stated he was married, and he gave evidence that he lived with his
parents and his alleged wife lived at another address with her parents. It was
further noted that the Applicant had been charged with assault against his
alleged spouse and he was acquitted of that particular charge.
[15]
On April
14, 2005, the Applicant made an application for PRRA.
[16]
On June
18, 2005, the Applicant was arrested for failing to comply with the conditions
of his Court order as well as conditions of immigration officials. The
Applicant’s detention was ordered to continue.
[17]
On July
21, 2005, the Applicant’s PRRA was determined to be negative.
[18]
On August
5, 2005, the Applicant was released on strict terms and conditions including
reporting to the Greater Toronto Enforcement Centre every month and to comply
with any removal arrangements.
[19]
In April
2005, the Applicant submitted an application for landing on H&C grounds
with spouse as sponsor; however, the application was returned for insufficient
fees.
[20]
The
Applicant was scheduled for removal from Canada on November 28, 2005. The Applicant
filed an application for leave and for judicial review and a motion for a stay
of removal. A stay was granted and removal was cancelled. Leave was denied on
November 15, 2006.
[21]
In October,
2005, the Applicant re-submitted his H&C with spousal sponsor with the
proper fees.
ISSUE
[22]
The
Applicant has failed to meet the tri-partite test for warranting a stay of
removal given the lack of a serious issue, the absence of demonstrable proof of
irreparable harm, and the balance of convenience favouring the Minister.
ANALYSIS
Preliminary matter: Amendment
to Style of Cause
[23]
This
motion and underlying application concern a decision of the Canada Border
Services Agency, which falls under the portfolio of the Minister of Public
Safety and Emergency Preparedness and not the Minister of Citizenship and
Immigration. The Respondent requests that the Court order that the style of
cause be amended to strike out the “Minister of Citizenship and Immigration” as
a responding party and to substitute instead the Minister of Public Safety and Emergency
Preparedness. (Order Setting Out the Respective Responsibilities of the
Minister of Citizenship and Immigration and the Minister of Public Safety and
Emergency Preparedness Under the Act, SI/2005-120, P.C. 2005-2042.)
Test for Stay
[24]
The test
for granting a stay is well established. The Applicant must establish:
1. that there is a
serious question to be tried;
2. that
the moving party would, unless the injunction is granted, suffer irreparable
harm; and
3. that the balance of
convenience favours the moving party.
(Toth v.
Canada (Minister of Employment and Immigration) (F.C.A.), [1988] F.C.J. No. 587 (QL); RJR-MacDonald
Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 (QL).)
[25]
The
requirements of the tripartite test are conjunctive. That is, the Applicant
must satisfy all three branches of the test before this Court can grant a stay
of proceedings. (Toth, above; Marenco v. Canada (Minister of
Citizenship and Immigration), (1994) 86 F.T.R. 299, [1994] F.C.J. No. 1690
(QL).)
[26]
Since the
granting of the Applicant’s motion would effectively give him the relief he
seeks in his underlying application for leave and judicial review, this Court
must review the merits of the application. This has been confirmed in Wang,
above, at paragraph 11, where Justice Denis Pelletier held that
the threshold for the serious issue branch of the tripartite test in motions
such as this, is not frivolous and vexatious, but rather, the “likelihood of
success.” (Reference is also made to RJR-MacDonald, above.)
[27]
The
issuance of a stay is an extraordinary remedy wherein the Applicants must
demonstrate “special and compelling circumstances” that would warrant
“exceptional judicial intervention. (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); Machado v. Canada (Minister of
Employment and Immigration) (1989), 9 Imm. L.R. (2d) 90, [1989] F.C.J. No.
724 (QL); Ikeji v. Canada, 2001 FCT 573, [2001] F.C.J. No. 885 (QL), at
para. 8.)
SERIOUS ISSUE
No reviewable error in
Officer’s decision
[28]
The
Applicant has not pointed to any specific issue with the Officer’s decision. In
fact, the Applicant did not know the reasons the Officer refused deferral.
Rather, the Applicant’s argument is to the effect that there is a serious issue
simply because his request for a deferral was refused. (Applicant’s Motion
Record; Applicant’s Memorandum of Fact and Law, p. 206, para. 11.)
[29]
Since
there is no statutory or other duty on the Officer to defer the Applicant’s
removal, and since the Officer’s discretion is very limited, the mere fact that
the Applicant’s deferral request was refused does not constitute a serious
issue.
[30]
Section 48
of the IRPA, requires that a removal order “be enforced as soon as reasonably
practicable”.
[31]
The IRPA
makes no provision for the reconsideration of decisions to execute a valid
removal order. Where no statutory requirements for reassessment exist, a
failure by a removals officer to reassess cannot constitute grounds for
judicial review. Removals officers merely particularize when and where the
deportation order is to be executed and have no discretion with respect to
removal. As the Minister’s official, the removals officer is obliged by law to
take the necessary steps to ensure that the removal would take place as soon as
reasonably practicable pursuant to s. 48 of the IRPA. (Brar v. Canada (Minister of Citizenship and
Immigration),
[1997] F.C.J. No. 1527 (F.C.T.D.) (QL); Williams v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 853, [2002] F.C.J. No. 1133 (QL).)
[32]
Removals
officers have the authority to defer execution of a removal order only in very
limited circumstances such as those arising just prior to the removal date. In
light of the fact that the IRPA provides for a Pre-Removal Risk Assessment, the
factors that can be considered by removals officers are tied to the Applicant’s
physical ability to comply with the removal order – e.g. fitness to travel. In
this case, it was well within the Officer’s discretion to find that the
Applicant’s circumstances did not warrant deferral of removal. (Pavalaki v.
Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 338
(QL); Wiltshire v. Canada (Minister of Citizenship and
Immigration),
[2000] F.C.J. No. 571, at para. 6; Simoes v. Canada
(Minister of Citizenship and Immigration), [2000] F.C.J. No. 936
(F.C.T.D.) (QL); Wang, above, at paras. 31, 32, 45;
Prasad v. Canada (Minister of Citizenship and
Immigration), 2003 FCT 614, [2003] F.C.J. No. 805 (QL), at para.
32; Padda v. Canada
(Minister of Citizenship and Immigration), 2003 FC 1081, [2003] F.C.J. No. 1353
(QL), at paras. 8-9.)
[33]
In
considering whether the Applicants have raised a serious issue, it is important
to keep in mind that jurisprudence of this Court indicates that a removal officer’s
discretion to defer a person’s removal is very limited. (Benitez v. Canada
(Minister of Citizenship and Immigration), 2001 FCT 1307, [2001] F.C.J. No.
1802, at para. 16; Wang, above, at paras. 43-45; Mariona v. Canada
(Minister of Citizenship and Immigration), [2000] F.C.J. No. 1521 (QL); Harry
v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1727
(QL); Horvath v. Canada (Minister of Citizenship and Immigration),
[2000] F.C.J. No. 1760 (QL); Davis v. Canada (Minister of Citizenship and
Immigration), [2000] F.C.J. No. 1628 (QL).)
[34]
A removals
officer cannot defer removal for just any proceeding in the IRPA, for which
he/she is not the mandated decision-maker. The removals officer does not have
the jurisdiction to make a renewed refugee assessment, nor a PRRA, nor a
decision on H&C grounds, nor, is he mandated to determine judicial reviews
or appeals of any of the preceding or other procedures. A removals officer is
solely mandated with the discretion to defer removal for reasons associated
with the challenges of arranging international travel. The Court in Wang,
above, explained
how very limited the discretion is:
[45] The order whose
deferral is in issue is a mandatory order which the Minister is bound by law to
execute. The exercise of deferral requires justification for failing to obey a
positive obligation imposed by statute. That justification must be found in the
statute or in some other legal obligation imposed on the Minister which is of
sufficient importance to relieve the Minister from compliance with section 48
of the Act…
…
[48] …At its widest, the
discretion to defer should logically be exercised only in circumstances where
the process to which deferral is accorded could result in the removal order
becoming unenforceable or ineffective. Deferral for the mere sake of delay is
not in accordance with the imperatives of the Act. One instance of a policy
which respects the discretion to defer while limiting its application to cases
which are consistent with the policy of the Act, is that deferral should be
reserved for those applications or processes where the failure to defer will
expose the applicant to the risk of death, extreme sanction or inhumane
treatment in circumstances and where deferral might result in the order becoming
inoperative.
[35]
The Wang
decision has been referred to and followed in a number of decisions, some of
which are Peterson v. Canada (Minister of Public Safety and Emergency Preparedness), (April 26, 2006) Doc. No.
IMM-2039-06; Kaur v. Canada (Minister of Citizenship and
Immigration),
2001 FCT 741, [2001] F.C.J. No. 1082 (QL), at para. 13; Sklarzyk v. Canada (Minister of Citizenship and
Immigration),
2001 FCT 336, [2001] F.C.J. No. 579 (QL), at para. 11; Sklarzyk v. Canada (Minister of Citizenship and
Immigration),
[2001] O.J. No. 1842 (Ont. Superior Court of Justice); Chandrasekaran v. Canada (Minister of Citizenship and
Immigration),
2001 FCT 757, [2001] F.C.J. No. 1101 (QL), at para. 6; Benitez, above.
[36]
In the
absence of a legal obligation to defer removal, the Applicant’s application
does not raise a serious issue. (Wang, above; Simoes, above.)
Spousal sponsorship
[37]
The
Officer noted that the spousal sponsorship was only referred in April 2007
because insufficient payment fees had been submitted with the original
application. (Heinze Affidavit 1, Exhibit “A”, Notes to File.)
[38]
There is
significant case-law from this Court and biding case-law from the Federal Court
of Appeal that states than an outstanding application is not, by itself, a
reason for staying removal. (Kim v. Canada (Minister of Citizenship and
Immigration), 2003 FCT 321, [2003] F.C.J. No. 453 (QL); Akyol v. Canada (Minister of Citizenship and
Immigration),
2003 FC 931, [2003] F.C.J. No. 1182 (QL), at para. 11; Ryan v. Canada
(Minister of Citizenship and Immigration), 2001 FCT 1413, [2001] F.C.J. No.
1939 (QL), at para. 8; Selliah, above; El Ouardi v. Canada (Solicitor
General), 2005 FCA 42, [2005] F.C.J. No. 189 (QL); Sivagnanansuntharam
v. Canada (Minister of Citizenship and Immigration), 2004 FCA 70, [2004]
F.C.J. No. 325 (QL); Tesoro v. Canada (Minister of Citizenship and
Immigration), 2005 FCA 148, [2005] F.C.J. No. 698 (QL); Owusu v. Canada
(Minister of Citizenship and Immigration), (28 August 1995) Doc. No.
IMM-2247-97, at paras. 5-6.)
[39]
The
Officer was not obliged to defer removal until the Applicant’s applications had
been decided. The IRPA specifically outlines the situations in which removal is
to be stayed, and Parliament has not included pending H&C applications in
this category. (Simoes, above; Smith v. Canada (Minister of Citizenship and
Immigration),
2001 FCT 388, [2001] F.C.J. No. 632 (QL); Buchting v. Canada (Minister of
Citizenship and Immigration), 2003 FC 953, [2003] F.C.J. No. 1216 (QL); Holubova
v. Canada (Minister of Citizenship and
Immigration),
2004 FC 527, [2004] F.C.J. No. 655 (QL); Wang, above.)
[40]
It is well
established that a removal officer is not meant to act as a last-minute
humanitarian and compassionate tribunal. As the Court has held in Davis, above:
[4] …I adopt the reasons
of Mr. Justice Nadon in Simoes v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 936 which I will not repeat
here. I would add to them to this extent. The Immigration Act and the
jurisprudence of this Court have established a series of checkpoints at which
various interests are assessed and weighed. At the conclusion of that process
is the removal process itself. In my view, it was not the intention of
Parliament in providing that removal be effected as soon as reasonable practicable
to put upon the Removals officer the obligation to consider all of the factors
which are to be raised and considered in the steps preceding removal.
(Emphasis added.)
[41]
The Court
has also stated in Cupkova v. Canada (Minister of Citizenship and
Immigration),
(August 28, 2003) Doc. No. IMM-6555-03, by Justice Judith A. Snider:
Further, consideration of an application
on humanitarian and compassionate grounds is not the statutory mandate of the
removals officer.
IRREPARABLE HARM
No clear or non-speculative
evidence
[42]
The
Applicant has provided no clear or non-speculative evidence that he faces
irreparable harm if removed to Venezuela.
[43]
The
Applicant had a negative refugee decision in 2004 and a negative PRRA in 2005.
(Heinze Affidavit, Exhibit “A”, Notes to File.)
[44]
This Court
has held that irreparable harm is a strict test in which serious
likelihood or jeopardy to the applicant’s life or safety must be
demonstrated. The Applicant in this case has not demonstrated jeopardy to her
life or safety. (Duve v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 387 (T.D.)
(QL), at para. 22; Mikhailov v. Canada (Minister of Citizenship and
Immigration), [2000] F.C.J. No. 642 (QL), at paras. 12-13; Frankowski
v. Canada (Minister of Citizenship and
Immigration),
[2000] F.C.J. No. 935, at para. 7; Csanyi v. Canada (Minister of Citizenship and
Immigration),
[2000] F.C.J. No. 758, at para. 4.)
[45]
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. (John v. Canada
(Minister of Citizenship and Immigration), [1999] F.C.J. No. 915 (QL); Wade
v. Canada (Minister of Citizenship and
Immigration),
[1995] F.C.J. No. 579 (QL), at paras. 3-4.)
[46]
In Selliah,
above, The Federal Court of Appeal has affirmed the following principle:
[13] The removal of persons
who have remained in Canada without status will always disrupt the lives that
they have succeeded in building here… 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:
Melo v. Canada (Minister of Citizenship and Immigration) (2000), 188
F.T.R. 39.
(Reference is also made to Atwal v. Canada (Minister of Citizenship and
Immigration),
2004 FCA 427, [2004] F.C.J. No. 2118 (QL), at paras. 16-17; Sklarzyk, above; Ram v. Canada (Minister of Citizenship and
Immigration),
(June 13, 1996), Doc. No. IMM-1939-06; Simoes, above; Frank v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 1574 (QL); Kerrutt v. Canada (Minister of Employment and
Immigration),
53 F.T.R. 93, [1992] F.C.J. No. 237 (QL); Mallia v. Canada (Minister of Citizenship and
Immigration),
[2000] F.C.J. No. 369 (QL).)
[47]
As stated
by Justice Pelletier in Melo v. Canada (Minister of Citizenship and
Immigration),
[2000] F.C.J. No. 403 (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… (Emphasis added.)
BALANCE OF CONVENIENCE
[48]
The
Applicant has not met the third aspect of the tri-partite test, insofar as the
balance of convenience favours the Minister and not the Applicant.
[49]
The inconvenience
that the Applicant may suffer as a result of his removal from Canada does not outweigh the public
interest in executing removal orders as soon as reasonably practicable in
accordance with s. 48 of the IRPA.
[50]
The public
interest is to be taken into account and weighed together with the interests of
private litigants. (Manitoba (Attorney General) v.
Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110.)
[51]
The
Applicant is seeking extraordinary equitable relief. It is trite law that the
public interest must be taken into consideration when evaluating this last
criterion. In order to demonstrate that the balance of convenience favours the
Applicant, the latter should demonstrate that there is a public interest not to
remove him as scheduled. (RJR-MacDonald, above; Blum v. Canada (Minister of Citizenship and
Immigration),
(1994) 90 F.T.R. 54, [1994] F.C.J. No. 1990 (QL), per Justice Rouleau.)
[52]
In the
Federal Court of Appeal decision in Selliah, above, Justice Evans found
that since the Appellants had received a number of administrative decisions,
which had been upheld by the Federal Court, in his view, the balance of
convenience did not favour delaying further discharge of the Minister’s duty,
or the Appellant’s duty as persons subject to an enforceable removal order, to
leave Canada immediately. Justice Evans 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.
[53]
The
Applicant is a non-citizen who has had the benefit of two administrative
decisions assessing risk. He had a negative refugee claim and a negative PRRA.
His application to this Court for judicial review of his negative PRRA was
dismissed. The Applicant has not demonstrated that the balance of convenience
favours the non-application of the law or outweighs the public interest. (Dasilao,
above.)
[54]
On March
27, 2005, the applicant was arrested by immigration authorities and released on
a cash bond of $3,000 and conditions. On June 18, 2005, the Applicant was
arrested for failing to comply with the conditions of the Court order as well
as conditions of immigration officials. The Applicant’s detention was ordered
to continue. On August 5, 2005, the Applicant was released on strict terms and
conditions including reporting to the Greater Toronto Enforcement Centre every
month and to comply with any removal arrangements. On February 21, 2007, the
Applicant was arrested and no offer for release was made given the Applicant’s
history of failing to comply with the conditions imposed on him. The Applicant
remains in detention.
[55]
The
Applicant has shown a repeated disregard for Canada’s laws. He has repeatedly flouted
immigration and court conditions. He has repeatedly failed to report as
directed by Citizenship and Immigration Canada. In such circumstances, the
balance of convenience is with the Respondent.
CONCLUSION
[56]
On the basis of the above, this Motion for a
stay of removal is dismissed.
ORDER
THIS COURT ORDERS that the motion
for a stay of removal be dismissed.
“Michel M.J. Shore”
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