Date:
20070712
Docket:
IMM-2603-07
Citation:
2007 FC 737
[ENGLISH TRANSLATION]
Ottawa,
Ontario, July 12, 2007
PRESENT:
The Honourable Mr. Justice Shore
BETWEEN:
MENDOZA
DURAN Beatriz Eugenia
Applicant
and
THE MINISTER OF PUBLIC
SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
PRELIMINARY REMARKS
[1]
As part of a motion to stay the removal order,
the applicant cannot allege the same risks that were dismissed at the Refugee
Protection Division (RPD) and in the pre-removal risk assessment (PRRA).
[2] ...Moreover,
his allegations on that point are substantially the same as the ones raised
when his claim was before the Immigration and Refugee Board. His allegations,
then assessed and dismissed because they were not credible, cannot be the basis
of an allegation of irreparable harm (see, for example, Akyol v. The
Minister of Citizenship and Immigration, [2003] FCJ No. 1182, 2003 FC 931).
(Dimouamoua v.
Canada (Minister of Citizenship and Immigration), 2005 FC 940, [2005] FCJ No. 1172 (QL).)
INTRODUCTION
[2]
The
applicant, a Mexican citizen, is filing a motion to stay a removal order made
against her. This motion was attached to an application for leave and for
judicial review (ALJR) regarding the negative decision that was made in the
applicant’s PRRA on May 17, 2007.
[3]
A
motion to stay a removal order was also filed in docket IMM-2604-07, attached
to an ALJR regarding a removal officer’s refusal to postpone her removal.
FACTS
[4]
The
applicant is a Mexican citizen and claimed refugee status in Canada on June 22,
2004. (Page 2, “Risks identified by the Applicant”,
Notes to file – Pre-removal Risk Assessment, (PRRA Reasons), exhibit “D” of the
Affidavit of Francine Lauzé.)
[5]
The
applicant alleged that she is afraid in her country due to her homosexuality. (See the “Reasons” for the decision made on January 6, 2005,
by the RPD exhibit “E” of the Affidavit of Francine Lauzé.)
[6]
The
refugee claim was heard by the RPD of the Immigration and Refugee Board (IRB),
which rejected her claim on January 6, 2005, due to the applicant’s lack
of credibility. The applicant did not file an ALJR for that decision.
[7]
The applicant filed an application for a
pre-removal risk assessment on February 25, 2007. (Application for a
Pre-Removal Risk Assessment, exhibit “F” of the Affidavit
of Francine Lauzé.) A negative decision was made on May 17, 2007. (PRRA Reasons, exhibit
“D” of the Affidavit of Francine Lauzé.)
[8]
The applicant is at present allegedly in a
common-law union with a man, as it appears in affidavits from the applicant and
her spouse, and allegedly filed an application for permanent residency in
Canada as a spouse on February 9, 2007.
[9]
The negative decision in her PRRA application
was communicated to the applicant on June 9, 2007, and was the subject of
the ALJR, which was filed on June 28, 2007 and is the dispute underlying
this motion. (See “Summons for
June 9, 2007”, exhibit “A” of the Affidavit of
Francine Lauzé and after “Officer’s
notes from June 9, 2007”, exhibit “B” of the
Affidavit of Francine Lauzé.)
[10]
During the meeting on June 9, 2007, the
applicant received a letter informing her that she had to appear no
later than July 4, 2007 at the offices of the Canada Border Services
Agency (CBSA) in possession of an airplane ticket with a departure date no
later than July 13, 2007.
[11]
The applicant did not appear on July 4,
2007, and the CBSA was in a position to issue an arrest warrant against the
applicant for her failure to appear. Due to the applicant’s failure, no
departure date could be set. (See note on record signed by Éric Gagnon, dated
05-07-2007, exhibit “L” of the Affidavit of Francine Lauzé.)
[12]
On July 4, 2007, the applicant signed and
filed motions to stay the removal order in this docket and docket IMM-2604-07.
[13]
On
July 6, 2007, the applicant finally appeared at CBSA offices and, because
the applicant had in her possession an airplane ticket for a flight leaving on
July 13, 2007, the departure date was set for July 13, 2007. (See the “Officer’s notes”, dated July 6, 2007, exhibit “G” of
the Affidavit of the Francine Lauzé and the confirmation of the departure date
of July 13, 2007, dated July 6, 2007, exhibit “H” of the Affidavit of
Francine Lauzé.)
ANALYSIS
[14]
In
order to assess the merits of the motion to stay, this Court must determine
whether the applicant meets the criteria in case law issued by the Federal
Court of Appeal in Toth v. Canada (Minister of
Employment and Immigration), 86 N.R. 302 (FCA).
[15]
In
that case, the Federal Court of Appeal selected three criteria that it took
from injunction case law, more specifically from the decision by the Supreme
Court of Canada in Manitoba (Attorney General) v. Metropolitan Stores
Ltd., [1987] 1 S.C.R. 110. Those three criteria are:
(1) the
existence of a serious question;
(2) the
existence of irreparable harm; and
(3) the
assessment of the balance of convenience.
[16]
The three criteria must be met for this Court to
grant the requested stay. If only one of them is not met, this Court cannot
grant the requested stay.
[17]
In
this case, the applicant has not demonstrated the existence of a serious
question to be decided as part of her ALJR regarding the officer’s decision on
her claim on humanitarian and compassionate grounds or the existence of
irreparable harm and lastly, the applicant’s inconveniences are not greater
than those of the public interest, which means that the removal must be
enforced as soon as is reasonably practicable under subsection 48(2) of
the IRPA.
SERIOUS QUESTION
[18]
The applicant did not demonstrate the existence
of a serious question to be decided by this Court.
[19]
The
applicant must show that she had reasonable opportunities to be given judgment
in her main remedy, that being her application for judicial review against the
officer’s decision.
THE PRRA OFFICER’S DECISION IS REASONABLE
[20]
The PRRA officer analyzed the applicant’s
allegations and the documentary evidence, and found that the applicant had not
demonstrated that she met the criteria of sections 96 and 97 of the IRPA.
That finding was reasonably inferred from the evidence and the applicant did
not show that intervention from this Court is warranted.
[21]
In support of her PRRA application, the
applicant reiterated the same facts and fears as those that were previously
reviewed by the RPD. The RPD found that the applicant was not credible and did
not accept her allegations. (Page 5 of the RPD Reasons, exhibit “E” of the
Affidavit of Francine Lauzé.)
[22]
The risks mentioned by the applicant in her PRRA
application were based on the allegations surrounding her homosexuality when
she was in Mexico. She did not want to return to Mexico and re-live what she
endured. (Page 8 of the PRRA Application, exhibit “F” of the
Affidavit of Francine Lauzé.)
[23]
The applicant had submitted no new evidence
and no new facts since her refugee claim was rejected by the RPD, which
would have supported the alleged personal risks.
[24]
Despite that and considering that no new facts
were presented in support of the PRRA application, the officer proceeded with a
review of the contemporary documentary evidence on the situation in Mexico.
[25]
The PRRA officer did not make any errors in his
analysis of the objective situation in the finding that was made, in which the
applicant did not show that she would be personally at risk if she were to
return to Mexico (Pages 6 and 7 of the Reasons of the PRRA decision).
[26]
In
light of the foregoing, the respondent maintains that the applicant failed to
raise a serious question in support of her motion. The motion for a stay of
removal can be dismissed for that one single reason.
IRREPARABLE HARM
[27]
The concept of irreparable harm was defined by
the Court in Kerrutt v. Canada (Minister of Employment and Immigration),
(1992) 53 F.T.R. 93, [1992] FCJ No. 37, para 15 (QL) (TD), as being the
removal of a person to a country where there exists a danger to his or her life
and safety.
[28]
Sandra J. Simpson, J., in Calderon v. Canada
(Minister of Citizenship and Immigration), [1995] FCJ No. 393, para 22
(QL) also stated the following regarding the definition of irreparable harm as
established in Kerrutt, above:
[22] In Kerrutt
v. MEI (1992), 53 F.T.R. 93 (F.C.T.D.), Mr. Justice MacKay concluded
that, for the purposes of a stay application, irreparable harm implies the
serious likelihood of jeopardy to an applicant’s life or safety. This is a very
strict test and I accept its premise that irreparable harm must be very
grave and more than the unfortunate hardship associated with the
breakup or relocation of the family. (Emphasis added)
[29]
The applicant partially repeated the facts that
had already been alleged in the refugee claim and the PRRA application
regarding her alleged homosexuality when she was living in Mexico.
[30]
The RPD rejected the applicant’s refugee claim
on January 6, 2005, finding that it did not believe the applicant’s
allegations. The applicant did not file an ALJR for that decision. (RPD
Reasons, exhibit “E” of the Affidavit of Francine Lauzé.)
[31]
Additionally, the risks that were raised by the
applicant in her PRRA application are based on the allegations surrounding her
homosexuality when she was in Mexico. She did not want to return to Mexico and
re-live what she endured.
[32]
The PRRA officer found that the applicant was
not at risk if she were to return to Mexico. (PRRA Reasons, exhibit “D” of
the Affidavit of Francine Lauzé.)
[33]
The applicant explains that she now realizes
that she was allegedly not really homosexual, but that she acted in such a way
to show eccentricity. Moreover, she is now openly, and with her family’s
knowledge, in a relationship with a man.
[34]
As part of a motion to stay a removal order, the
applicant cannot allege the same risks that were rejected by the RPD and in the
PRRA.
[2] ...Moreover,
his allegations on that point are substantially the same as the ones raised
when his claim was before the Immigration and Refugee Board. His allegations, then
assessed and dismissed because they were not credible, cannot be the basis of
an allegation of irreparable harm (see, for example, Akyol v. The Minister
of Citizenship and Immigration, [2003] FCJ no 1182, 2003 FC 931).
(Dimouamoua,
above.)
[35]
Moreover, in support of her motion to stay, the
applicant alleged that since her spouse is Muslim, her parents disowned her,
and she feared for her “future, reputation, and safety” if she had to return to
Mexico. (Paragraphs 28 and 30, Applicant’s Affidavit, page 13 of the Motion
Record.)
[36]
Those
allegations by the applicant are vague and do not provide any details on the
irreparable harm that she would suffer if she had to return to Mexico. It is
not clear whether those risks were due to the fact that her spouse is a Muslim
or associated with her allegations of homosexuality.
[37]
For
those reasons, the alleged prejudice is purely speculative:
[7] Second,
irreparable harm must not be speculative nor can it be based on a series of
possibilities. The Court must be satisfied that the irreparable harm will occur
if the relief sought is not granted: Atakora, supra, at para. 12; Syntex
Inc. v. Novopharm Inc. (1991), 36 C.P.R. (3d) 129, at page 135 (F.C.A.); and
Molnar v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J.
no 559, 2001 FCT 325, at para. 15.
(Akyol v.
Canada (Minister of Citizenship and Immigration), 2003 FC 931 [2003] FCJ No. 1182 (QL).)
APPLICANT’S
SPOUSE
[38]
In his affidavit, the applicant’s spouse stated
that he cannot live with the applicant in Mexico, since her family has disowned
them.
[39]
In addition, he cites the financial commitments
that he and the applicant have taken on together and that it would be
impossible for him to pay those debts on his own.
[40]
The problems raised by the spouse and the applicant
are normal consequences for a removal. In addition, neither details nor
evidence were provided as to those commitments.
[41]
Moreover, no details on the relationship were
submitted.
[42]
It is settled law that the separation of a
family is not in itself an irreparable harm because this is a normal
consequence of a removal.
[3] Second,
family separation per se is not irreparable harm because it is within the
normal consequences of deportation (see, i.e.: Asomadu-Acheampong v. M.E.I.
(March 22, 1993), IMM-1008-93; Boda v. M.E.I. (1992), 56 F.T.R. 106; Mobley
c. M.C.I. (June 12, 1995), IMM-107-95; Jones v. M.C.I. (June 12,
1995), IMM-454-95; Ram c. Canada (Minister of Citizenship and Immigration),
[1996] F.C.J. no. 883 (QL); Mario Ernesto Huezo et al. c. M.C.I. (April
21,1997), IMM-1491-97; William Geovany Castro v. M.C.I. (October 14,
1997), IMM-2729-97; Melo v. Canada (M.C.I.) (2000), 188 F.T.R. 39 et Kaur
v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. no. 766
(QL)). There is nothing about the applicant’s case which takes it beyond the
usual result of deportation.
(Celis v.
Canada (Minister of Citizenship and Immigration), 2002 FCT 1231 [2002] FCJ No. 1679, para 3
(QL); See also: Parsons v. Canada (Minister of Citizenship and Immigration), 2003 FC 913, [2003] FCJ No. 1161, para 10 (QL); Damiye
v. Canada (Minister of Citizenship and
Immigration), [2001] FCJ No. 70, para 24 (QL).)
[43]
Separation from a spouse is not the type of
prejudice to which the three-part test refers for obtaining a stay. Thus,
Pelletier J. mentions in Melo v. Canada (Minister of Citizenship and
Immigration), [2000] FCJ no. 403 (TD) (QL):
[21] These are
all unpleasant and distasteful consequences of deportation. But 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. There is nothing
in Mr. Melo’s circumstances which takes it out of the usual consequences
of deportation.
[44]
Ultimately,
the applicant and her spouse knew of the applicant’s precarious status when they
took on financial commitments, which moreover have not been proven before the
Court, and made their decisions in full knowledge of the case. In the words of
Paul Rouleau J., they took their own risks:
[16] I see no
transgressions in the conduct of the Minister; no expectations granted the
applicant; if he chose to marry while still not having his situation favourably
determined by Canadian authorities, it is at his peril, not that of the
Minister who has a duty to uphold the laws of Canada.
(Banwait v.
Canada (Minister of Citizenship and Immigration),
[1998] FCJ no. 522 (TD) (QL).)
[45]
As
a result, and in the absence of a serious question to be decided by this Court,
the applicant has not demonstrated the existence of irreparable harm.
BALANCE OF
CONVENIENCE
[46]
In addition to showing that the underlying ALJR
raises a serious question and that an irreparable harm will be suffered if
there is no stay of removal, the person applying for the stay must establish
that, in light of all circumstances, the balance of convenience favours the
granting of the stay. (Manitoba (Attorney General) v. Metropolitan
Ltd., above; R.J.R. – Macdonald Inc. v. Canada (Attorney General),
[1994] 1 SCR 311; Toth, above).
[47]
To determine the balance of convenience, the
Court must decide which of the two parties will suffer the greatest prejudice
based on whether the stay is granted or denied. (Manitoba (Attorney
General) v. Metropolitan Ltd., above.)
[48]
With no serious questions or irreparable harm,
the balance of convenience favours the Minister, whose interest is that the
removal order is enforced on the set date. (Mobley v. Canada (Minister
of Citizenship and Immigration), [1995]
FCJ No. 65,
para 2 (QL).)
[49]
In fact, subsection 48(2) of the Act sets
forth that a removal order must be enforced as soon as is reasonably
practicable.
|
48. (1) Enforceable Removal Order - A
removal order is enforceable if it has come into force and is not stayed.
(2) Effect - If 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.
|
48. (1) Mesure de renvoi - La mesure de renvoi est exécutoire
depuis sa prise d’effet dès lors qu’elle ne fait pas l’objet d’un sursis.
(2) Conséquence - L’étranger visé par la mesure de renvoi
exécutoire doit immédiatement quitter le territoire du Canada, la mesure
devant être appliquée dès que les circonstances le permettent.
|
[50]
Barbara Reed J., in Membreno-Garcia v. Canada
(Minister of Citizenship and Immigration), [1992] 3 FC 306 (TD), [1992] FCJ
No. 535,
para 18 (QL), also elaborated on the question of the balance of
convenience in matters of stays and of the public interest, which must be
considered:
[18] 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.
[51]
The
balance of convenience weighs in favour of the Minister.
CONCLUSION
[52]
For
all of these reasons, the motion for stay of the removal order is dismissed.
JUDGMENT
THE COURT ORDERS that the motion for stay of the removal be dismissed.
“Michel
M.J. Shore”
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