Date: 20070921
Docket: IMM-3344-07
IMM-3363-07
Citation: 2007 FC 948
Ottawa, Ontario, September
21st 2007
PRESENT: The
Honourable Mr. Orville Frenette
BETWEEN:
DAVID MAKORI NYACHIEO, ELECTA
TERESA NYACHIEO,
BRENDA NYABOKE NYACHIEO (MINOR),
LINDA MONGINA NYACHIEO, and
FRED GEORGE NYACHIEO (MINOR)
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
BETWEEN:
DAVID NYACHIEO, ELECTA NYACHIEO,
BRENDA NYACHIEO, LINDA NYACHIEO, and
FRED NYACHIEO, by his litigation
guardian,
DAVID NYACHIEO
Applicants
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR
ORDER
[1]
These
motions seek an order granting the applicants a stay against an order of
removal scheduled for September 17th 2007, pending an application
for judicial review of the administrative decision of removal dated September 6th
2007, refusing their request for the deferral of the removal order.
STATEMENT OF FACTS
[2]
The
principal applicant, David Makori Nyachieo, is a citizen of Kenya. He came to
the United
States
in 1999. His family composed of his wife, Electra Teresa Nyachieo (the female
applicant) and their children, Brenda Nyaboke Nyachieo, Linda Mongina Nyachieo
and Fred George Nyachieo, all citizens of Kenya. Brenda
stayed in the United
States
after 1999. The female applicant came to the United States with her
daughter Brenda in 2000. The principal applicant stayed in Kenya with his
children Linda and Fred. During all the time they stayed in the United
States
between 1999 and 2004, none applied for refugee status there.
[3]
In
November 2004, the family entered Canada, except Electra who
came to Canada in February
2005. They immediately all made refugee claims in Canada alleging persecution
of the family in Kenya from a member of Parliament of Kenya. They
claimed they were threatened because the principal applicant, an educator, had
made efforts to incite awareness about human rights, HIV/AIDS, and Female
Genital Mutilation, in the community.
[4]
In
1998, the applicant’s uncle was killed because of the involvement in the
community. The killers also beat and tortured his brother. The family’s fear
for their safety and life induced their decision to move to America. In the United
States,
they did not obtain visas until 2004.
[5]
The
applicants have filed a new application to judicially review the last decision
of August 7th 2007. This motion has not yet obtained leave to
proceed.
[6]
The
record reveals that the principal applicant is working as a counsellor in the
developmental disability field. The female applicant is a Registered Practical
Nurse since July 26, 2007. The children in this application are all students in
various schools or university in Canada. Linda has one semester
to complete to finish grade 12. The family members are actively involved in an African Fellowship Church.
DECISIONS
[7]
The
claims of the applicants for refugee protection were rejected by a decision of
August 12th 2005 of the Refugee Protection Division (the “RPD”). The
decision rendered by L. Fournier, was based on the lack of fear or risk of the
applicants and the absence of grounds to believe them, if removed to Kenya, that they would
be in danger. In particular, the agent considered the failure to claim asylum
in the United
States.
The applicant had explained it was because the United States system was
not as generous as the Canadian one.
[8]
The
applicants sought a judicial review from that ruling on July 11th
2006 by Justice Beaudry, who dismissed the motion, agreeing with most of the
reasons of the RPD decision. Justice Beaudry also considered the failure of the
applicants to claim protection in the United States. A factor taken into
account in Gonzalez v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. no. 1965; Mesikano et al
v. Canada (Minister of Citizenship and Immigration), IMM-4433-06, September
17th 2007 and Qureshi et al v. Canada (Minister of
Citizenship and Immigration), IMM-4462-06, September 14th
2007.
[9]
The
applicants filed motions for a Pre-Removed Risk Assessment (PRRA), which were
rejected on January 18, 2007.
[10]
The
applicants sought to have their refugee claim re-opened in November 2006. This
application was denied in a decision of August 7th 2007.
APPLICANTS’ SUBMISSIONS
IN SUPPORT OF A STAY OF THE REMOVAL ORDER
(i) The
removal decision
[11]
A
summary of the decision of September 5th 2007, by the agent Nancy
Holdsworth of Canada Border Services Agency (CBSA), (notes covering 11 pages),
shows that she considered:
1-
The
question of the applicants, three young adults, to complete their school year;
2-
The
risk of returning to Kenya;
3-
If
removed, the inability to pursue the negative H&C application;
4-
The
medical condition of Linda Mongina Nyachieo;
[12]
The
agent addressed all of these questions and decided there existed no exceptional
circumstances which would justify a deferral.
[13]
In
particular, she quoted Dr. Waddell from the medical branch to the effect that
there was no evidence that Linda Mongina Nyachieo could not travel and saw no
problems in the United States and Kenya, to obtain appropriate
medical treatment for her.
(ii) The
issues
[14]
The
issues raised in this proceeding are in brief identified to those discussed in
front of the removal officer, i.e.
1.
The
risk and fear of returning to Kenya;
2.
The
most recent H&C application of August 7th 2007, unauthorized to
date;
3.
The
completion of the education of three of the applicants;
4.
The
medical condition and medical treatment of the applicant Linda.
[15]
The
applicants pleaded that the refusal to defer the removal order was unreasonable
and that the stay should be granted pending the disposition of the H&C
application for judicial review. In summary, the respondent argued that the
decision was reasonable and was subject to a high degree of deference.
THE STANDARD OF REVIEW
APPLICABLE IN THIS CASE
[16]
Section
48(1) of the Immigration and Refugee Protection Act (the IRPA) states:
|
48(1) Enforceable removal order--A
removal order is enforceable is 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)
La mesure de renvoi est exécutoire depuis sa prise d’effet dès lors qu’elle
ne fait pas l’object d’un sursis.
(2)
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.
|
If this is a valid enforceable order, immediate
removal should be the rule not the exception: see Chowdhury v. Canada (Solicitor General) 2006 FC 663 at para 4.
[17]
According
to some cases, because the removal officer’s discretion is very limited, the
standard of review is a patently unreasonable one: see Wang v. Canada
(Minister of Citizenship and Immigration), 2001 FCT 148; Bharat v.
Canada (Solicitor General), 2004 FC 1720; Labiyi v. Canada (Solicitor
General), 2004 FC 1493; Hailu v. Canada (Solicitor General), 2005 FC
229; Griffiths v. Canada (Solicitor General), 2006 FC 127.
[18]
Another
group of cases decided that the standard of review in such a case,
reasonableness simpliciter, (a less stringent test) see: Raudales v. Canada
(Minister of Citizenship and Immigration), 2003 FCT 385; Liyanage v. Canada
(Minister of Citizenship and Immigration), 2005 FC 1045; Poyanipur v. Canada
(Minister of Citizenship and Immigration), [1995] F.C.J. 1785 at para 9; Cortes
v. Canada (Minister of Citizenship and Immigration), 2007 FC 78. I believe
that the present situation is one of mixed facts and law and should be resolved
on the intermediate standard of reasonableness simpliciter. The reasonableness
test requires the court to consider the reasons mentioned before but also humanitarian
and compassionate grounds.
[19]
As
Justice O’Reilly wrote in Ramada v. Canada (Solicitor
General),
2005 FC 1112, at para 3 “[…] valid reasons may be related to the person's ability to
travel (e.g. illness or a lack of proper travel documents), the need to
accommodate other commitments (e.g. school or family obligations), or
compelling personal circumstances (e.g. humanitarian and compassionate
considerations) […]”. However, the fact that a person has an outstanding
application for humanitarian and compassionate relief is not a sufficient
ground to defer removal.
ANALYSIS
[20]
The applicants argue that there are four serious issues, referred to
above. The respondent replies that these are normal issues which appear in many
or most removal or deportation orders. A review of the record in this case
reveals that the applicants have instituted all available legal recourses under
the Immigration and Refugee Protection Act, S.C. 2001, c. 27, since 2004
after they landed in Canada. All of these recourses have failed. They had an
H&C application which was decided unfavorably by a judicial review in 2006
and also a PRRA in 2007. The question of risk of returning to Kenya has already
been disposed of. The only remaining more recent issues are the completion of
the studies of some of the applicants and the medical issue concerning the applicant
Linda’s injuries. I find that this last one is a non-issue since Dr. Waddell’s
opinion is clear that travel is not a problem and medical treatment is
available in the U.S.A. or Kenya.
[21]
The H&C application of August 7th 2007 has not yet been
authorized. In any case, it can be pursued even if the applicants are outside Canada.
[22]
As for the disruption of the studies of the applicants, it is an issue
but it is the same one that occurs in many situations of removal or
deportation. The Expulsion Officer, Nancy Holdsworth, reviewed all of the facts
submitted and most of the arguments presented to this Court by the applicants.
She considered the factors involved and decided that there were no exceptional
circumstances that warranted a deferral of removal. According to the law
exposed previously, I cannot conclude that upon these facts or issues, her
decision is unreasonable. The question here is not if I agree with her
decision, but if the facts rationally support her decision.
IRREPARABLE HARM
[23]
Irreparable harm must not be speculative or based upon simple
possibilities. A court must be satisfied that irreparable harm will occur: Atakora
v. Canada (Minister of Employment and Immigration), [1993]
F.C.J. No. 826 (F.C.T.D.); Osaghae v. Canada (Minister of
citizenship and Immigration), IMM-872-03, February 12, 2003 (F.C.T.D.). The
irreparable harm claimed by one of the applicants concerning the schooling is
often the usual one of the consequences of a removal or a deportation order. The
applicants must have expected the removal order since all attempts they made to
remain since 2004 have failed. They have raised the issue of “irreparable harm”,
one which existed beyond the motion of removal or deportation itself: Melo
v. Canada (Minister of Citizenship and Immigration), [2000]
F.C.J. No. 403 (F.C.T.D.) at para. 20-21. The requirement of irreparable harm
beyond removal consequences as not been made here.
THE BALANCE OF
CONVENIENCE
[24]
In
light of the fact that this is a tripartite test and, once the first and second
conditions have not been satisfied, the exercise should stop here. Furthermore,
public interest must prevail over private interest when the evidence indicates
the applicants were not likely to suffer irreparable harm or that serious
issues have not been raised.
[25]
In
summary, the Expulsion Officer’s refusal to defer removal is reasonable and the
conditions of the tripartite test have not been met.
[26]
There
is no question for certification.
CONCLUSION
[27]
Therefore,
for all of the above reasons, the application for an order granting the
applicants a stay against an order of removal, is dismissed.
"Orville
Frenette”
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