Date: 20070914
Docket: IMM-3618-07
Citation: 2007 FC 909
Ottawa, Ontario, September 14th
2007
PRESENT: The Honourable Mr. Orville Frenette
BETWEEN:
NAIR
FATIMA BABOLIM
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
and
THE MINISTER OF PUBLIC
SAFETY AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR ORDER AND ORDER
UPON motion of the applicant for an order
staying the execution of an order requiring her to leave Canada for Brazil on September 16th 2007;
AND UPON reviewing the written materials
submitted by the parties;
AND UPON having heard the counsels’ oral
submissions by telephone conference;
AND UPON taking account of the
following:
(i) Introduction
The applicant seeks and order for a stay of
removal scheduled for Sunday, September 16th 2007, pending an
application for leave if granted, for judicial review.
(ii) The decision of the enforcement
officer
The decision of the enforcement officer for
Canada Border Services Agency (CBSA) rendered on September 5th 2007
refusing an administrative deferral of the removal of the applicant is very
brief, in the form of a letter, with few reasons, if any.
The applicant alleges exceptional circumstances
which should have led the officer to exercise her discretion to defer removal
until her Humanitarian and Compassionate (H&C) application is decided.
Without encroaching upon the subsequent Court’s decision
upon the application for judicial review, I cannot ignore the consequences
flowing from the facts documented in the file.
(iii)
Statement
of facts
The applicant is a 40 year-old female national
of Brazil.
In 2003, she met a man named “Vincent Randall”
at a beach in Brazil, who said he was a Canadian on vacation in Brazil.
He remained in Brazil until February 2004, when he returned to
Canada. The parties fell in love;
they were engaged to be married on May 6th 2004; she followed him to
Canada in May 2004 entering as a
visitor. They married in Toronto on September 11th
2004. In 2005, he sponsored her as a spouse and she applied for permanent
residence in Canada. He then became abusive,
mentally and physically assaulted her, warning her not to call the police and threatened
to kill her.
On December 21st 2005, Citizenship
and Immigration Canada (CIC) enforcement officers arrested both parties, as illegal
residents. The applicant was advised by the police that “Vincent Randall” was a
false name, that his real name was “Carlos Batista Carpes”, a Brazilian
resident. He was removed back to Brazil
in January 2006. The applicant was allowed to remain in Canada. According to the evidence
filed in the Record, Carlos contacted the applicant’s family in Brazil, threatening
to harm the applicant or her daughter (who resides in Brazil), blaming her for his expulsion from Canada. He threatened to kill her if
she went back to Brazil.
The family reported the threat to the Brazilian
Police who did not act upon it. The evidence in the file reveals that some of the
Brazilian Police are corrupt and will not protect domestic complainants.
Reputable International Organization reports conclude that there is undisputed
violence and killings committed by state police (military and civil). In 2006,
according to a report in Human Rights practices, 3000 prisoners were killed by
police in Rio de
Janeiro, Brazil,
during the year.
The applicant fears for her life and that of her
family and daughter, is she is forced to return to Brazil. This risk was reported to the deferral
officers together with the documents about police services in Brazil.
(iv) The applicable law
The Supreme Court of Canada has introduced a
tri-partite test to determine whether an interlocutory injunction should be
granted pending a determination of a case on its merits namely:
1.
Whether
there is a serious question to be tried;
2.
Whether
the litigant, would, unless the interlocutory injunction was granted, suffer
irreparable harm;
3.
The
balance of inconvenience, in terms of which of the two parties would suffer the
greater harm from the granting or the refusal of an interlocutory injunction
pending a decision on the merits.
Manitoba (Attorney General) v. Metropolitan
Stores Ltd.,
[1987] 1 S.C.R. 110;
RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311
a test applied by the Federal Court of Appeal in stays of
removal on deportation in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.).
(v) Analysis
1- Is there a serious
issue?
In a stay motion, there is an elevated standard
to constitute a serious issue and the Court must closely examine, if, on its
merits, the underlying issue is likely to succeed.
Wang v. Canada (MCI), 2001 FCT 148
Further “[…] If there is a valid and enforceable
removal order, immediate removal should be the rule and deferral the exception”
[…].
Chowdhury v. S.G.C., 2006 FC 663 at para
4
In the present case, we have the deciding
officer’s note, although this is not legally compulsory, yet we do not know
exactly the reasons refusing to defer the removal. It is true that the leading
jurisprudence on this matter, hold that such an administrative decision does
not require formal, written reasons to satisfy the limited purpose of removals
officers pursuant to section 48 of the Act.
Tran
v. M.P.S.E.P., 2006 FC 1240 at para 16;
Boniowski
v. MCI, 2004 FC 1161 at para 11
An enforcement officer has limited discretion to
delay removal but he may take into account “factors affecting the personal
safety or health of the person removed”, see: Prasad v. Canada (M.C.I.), 2003 FCT 614; Wang v.
Canada (M.C.I.), 2001 FCT 148. The standard of review equates patent
unreasonableness, see: Harb v. Canada (M.C.I.), 2003 FCA 39 at para 14; Chir
v. Canada (M.P.S.E.P.), 2006 FC 242.
In sum, even if the officer’s discretion is
limited, when factors such as illness or othern issues to travel exist and
there is a pending H&C application, unresolved due to backlogs in the
system, a deferral should be granted.
Simoes v. M.C.I., IMM-2775-00, June 16,
2000 at para 11
In this present case, there is an H&C
application filed 20 months ago and it seems to me that in the circumstances
described previously, there exists a serious question to debate concerning the
risk in Brazil and the officer did not refer
to it. In such a case of potential risk, as Justice Barnes wrote in Perea v.
Canada (M.C.I.), IMM-3090-07, August 08, 2007, seeing the seriousness of
the allegations of death threats, a judge should ensure caution. I therefore
believe there is a serious risk to be addressed in this case.
2- Irreparable Harm
The applicant must satisfy the requirement of
irreparable harm. It has been held that “irreparable harm must not be
speculative nor can it be based on a series of possiblities.
Akoyl v. Canada (M.C.I.) 2003 FC 931 at
para 6-7
In my view, the applicant has demonstrated that
she is likely to face irreparable harm if she returns to Brazil. She has been a victim of
domestic violence in the hand of her spouse. He has threatened her with death
threats, threats to her daughter and family in Brazil, justifying a complaint to the police
which have not acted to date. The Law in Brazil prohibits domestic violence but in fact
according to documentary evidence, it is widespread and underreported. Furthermore,
documentary evidence shows that the police in Brazil have a reputation of being violent and
unlawfully killing people. Therefore, in my opinion, the test re: irreparable
harm to the applicant has been satisfied.
3- Balance of Convenience
This third test is a determination of which of
the two parties would suffer the greater harm from the granting or the refusal
of a stay order. On one hand, there is no doubt that under section 48 of the
IRPA, an enforceable removal order must be enforced as soon as possible.
On the other hand, the applicant has no criminal
record, she poses no danger to the public or to the security of Canada. She could suffer irreparable
harm if she is returned to Brazil before the application for
judicial review is decided.
Singh
v. Canada (Minister of Citizenship and
Immigration),
[1995] F.C.J. no. 1440 (QL)
Smith
v. Canada (Minister of Employment and
Immigration),
[1992] F.C.J. no. 1069 (QL)
Therefore, the conditions required have been
met.
FOR ALL THESE REASONS, THIS COURT ORDERS that:
- The application for a stay of the
removal order of September 16th 2007, be granted, until the
applicant’s underlying for leave and judicial review is finally determined.
“Orville
Frenette”
Email this Content