Date: 20081126
Docket: IMM-4539-08
Citation: 2008
FC 1325
Ottawa, Ontario, November 26, 2008
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
ARNALDO ACHI DELISLE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
AND THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR ORDER AND ORDER
Introduction
[1]
The
applicant, a citizen of Cuba, seeks a stay of his removal
to the United
States. On
October 20, 2008, the Chief Justice of this Court issued an interim stay of his
removal scheduled for the United
States the next
day pending the filing of additional material and a full hearing of his stay
application. His stay application is grafted to an application for leave and
judicial review challenging the decision of a Minister’s Delegate (the
Delegate) dated September 15, 2008 but only communicated to him on October 15,
2008 determining (1) he would not be subject to the risks identified in section
97 of the Immigration and Refugee Protection Act (the Act) if
returned to his country of nationality (Cuba) or his country of habitual
residence (the United States), (2) that he was not a danger to the
public in Canada and (3) that there were insufficient humanitarian and
compassionate grounds to keep him in Canada. The Delegate’s decision was made
pursuant to sections 112(3) and 113(d) of the Act which provide that a
pre-removal risk assessment is limited to section 97 factors and in the case of
an applicant who is inadmissible on grounds of serious criminality, whether
that person is a danger to the public in Canada. The procedure governing the Delegate’s
consideration of the issues is spelled out in section 172 of the Immigration
and Refugee Protection Regulations (the Regulations). I set out, in
both official languages, in a schedule to these reasons sections 112 and 113 of
the Act and section 172 of the Regulations.
[2]
The
procedure contemplates a three step process leading the Delegate’s decision:
·
A risk
assessment by a PRRA Officer (the Officer);
·
An
opportunity for an applicant to comment on the risk assessment by making
submissions to the Delegate;
·
A decision
by the Delegate.
Background
[3]
The
applicant was born in Cuba on August 23, 1966. In September
1994, he fled Cuba aboard a raft, was intercepted by the U.S. Navy and
confined for a year at Guantanamo Bay. He was allowed to enter the United States as a refugee in 1995.
He apparently became a permanent resident of that country but asserts he lost his
status because of the crimes he committed there.
[4]
While in
the United States, he was convicted of two offences: a first offence on
October 15, 1996 for possession of a controlled substance (cocaine) for
which he was sentenced to imprisonment between 12 to 24 months and a second
offence on December 11, 1997 for possession of cocaine with intent to
sell for which he was sentenced to imprisonment between 12 to 34 months, a
sentence which if the crime had been committed in Canada could be for a term of
imprisonment for life.
[5]
On
February 17, 2000,
he entered Canada and immediately claimed refugee status on the basis of fear
of return to Cuba because of his political
opinion and the United States because of likely incarceration on account of
breaches of the U.S. Immigration Act. His
claim was refused by the Refugee Division on June 11, 2001. The Refugee
Division found him to be credible. The tribunal found considering he left Cuba illegally and had lived in the United
States for more than four years, it had reason to believe Mr. Delisle had a
well founded fear of returning to Cuba.
The tribunal, however, held he could not be granted refugee status because he
was excluded under section 1Fb) of the Geneva Convention of 1951, i.e.
having committed a serious crime in the United States, namely, drug trafficking.
[6]
On July
4, 2002,
Justice Pinard of this Court dismissed the applicant’s judicial review
application being of the view the Refugee Division had made no error. The
conditional deportation order which had been issued against the applicant
became enforceable against him when his refugee claim failed.
[7]
On May
2003, making
an assessment of Mr. Delisle’s PRRA application, the Officer expressed the
following opinion: “Considering the previous evaluation, the immigration file of
the claimant, his profile, the situation in Cuba and the United States, I am
of the opinion that the claimant will be at risk for his life and at risk of
cruel and unusual treatment or punishment by the Cuban authorities if he was
returned to Cuba.” [Emphasis mine.]
[8]
The Officer,
under the heading “the best interests of the child”, said the applicant had a
two year old child, Alejandro who is 7 years of age, born from his common law
partner Jo-Anne Dizazzo. He also observed the applicant had mentioned in his
PRRA observations “that his girlfriend, her son [Tyson who is 14 years of age]
from a previous relationship and their mutual son” are all supported and cared
for by his spouse’s family. He also noted he had a child in Cuba. He considered the best interests of Alejandro
and Tyson and determined “It is my opinion that the final decision as to
whether the child should follow the claimant or remain in Canada with the mother is up to the
couple.” Under the heading “Results of Assessment – Opinion”, the Officer made
no formal determination on the best interests of the child.
[9]
By letter
of May 2003, the applicant was provided a copy of the Officer’s opinion
report and with documents. The applicant was also advised that such documents
would be sent to the Delegate who “will determine if you are at risk of
torture, risk to life or risk to cruel and unusual treatment or punishment” and
that he had an opportunity to make representations.
[10]
The
applicant and his spouse responded the next day by stating that he basically
agreed with the opinion adding “I would also like to add that the best interests
of my child would not be to live with his mother or myself since he has
been with both of us and his older brother ….” The couple went on to make other
comments invoking humanitarian considerations.
[11]
As noted
on September 15, 2008, the Delegate issued his decision. In summary, his
conclusions were:
·
The
applicant would not be exposed to section 97 risks because conditions had
changed in Cuba with the transfer of power
(the Presidency) from Fidel Castro to his brother Raoul;
·
Upholding
the Officer’s findings on this point, he concluded the applicant would not be
exposed to section 97 if returned to the United States being of the view he was
“paroled into the United States on a special program”; “he was released after
his State prison term/USINS detention (although he possesses a criminal record)”;
he might have difficulty to find a job but not being able to find a job is not
a section 97 risk; discrimination does not constitute a section 97 risk and his
fear of being detained and the possibility of being detained in the U.S. is not
“a situation justifying in itself Canada’s protection”;
·
The
applicant is not a danger to the public because his criminal convictions for
serious crimes are over 10 years old; he has expressed regret and he is unlikely
to re-offend.
[12]
On October
17, 2008, the applicant sought leave and judicial review of the Delegate’s decision.
Analysis
[13]
It is
settled law that in order to obtain a stay of his removal pending consideration
of his application for leave and judicial review, the applicant must satisfy
the Court on each of the three elements that are necessary to obtain a stay:
(1) serious question to be tried; (2) irreparable harm and (3) balance of
convenience.
(a) Serious question to be tried
[14]
The
Supreme Court of Canada in RJR -- MacDonald Inc. v. Canada (Attorney
General), [1994] 1 S.C.R. 311 (RJR -- MacDonald) discussed the
indicators of a serious question to be tried stating the threshold was a low
one and that the judge on the application for a stay must make a preliminary
assessment of the merits of the case and once satisfied that the application is
neither vexatious or frivolous should go on to consider the other two criteria.
[15]
Counsel
for the applicant raised in my view at least the following serious questions:
1)
Did the
Delegate apply the correct legal test to determine that conditions in Cuba had changed to such an extent so as to eliminate
any section 97 risk to the applicant if returned to Cuba?
2)
Did the
Delegate err in fact by ignoring relevant documentary evidence on current
conditions in Cuba and specifically in failing to comment on the US DOS report
on Cuba published in March 2008 which
was in front of him?
[16]
I do not
think the issue raised by the applicant on whether the Delegate adequately
considered the best interests of the children raises a serious issue as the
Federal Court of Appeal, in Varga v. Canada (Minister of Citizenship and
Immigration),
2006 FCA 394, determined a PRRA analysis does not encompass a consideration of
the best interests of a child.
[17]
I note
that counsel for the applicant, in his first memorandum filed on October 17,
2008, had claimed the Delegate had acted without jurisdiction in re-assessing
the risk previously assessed by the Officer. He abandoned that point in his further
submissions.
(b) Irreparable harm
[18]
Counsel
for the applicant made three submissions the applicant satisfied the
irreparable harm test:
·
Irreparable
harm on account of the break-up of the family unit;
·
Irreparable
harm on account of the fact his judicial review application seeking to set
aside the Delegate’s decision will become moot;
·
Irreparable
harm on account of his likely detention in the United States.
[19]
For the
reasons that follow, I am of the view the applicant has not demonstrated the
likelihood he will suffer irreparable harm on the three grounds he advanced.
[20]
First,
while I accept that irreparable harm may in some circumstances encompass that
type of harm to a family unit (see Kahn v. the Minister of Public Safety and
Emergency Preparedness, 2005 FC 1107, at paragraph 27), I am not satisfied
that, after reading the applicant’s affidavits and those of his partner Jo-Anne
Dizazzo, he has identified any harm which rises above the harm normally
associated with the execution of a lawful deportation order. In my view, the
harm the applicant and his partner have identified is inherent in the nature of
a deportation involving the removal of a family member. The applicant had to
show his particular circumstances and those of his family unit disclosed a type
of harm upon removal which was unique and special. This he has failed to do.
[21]
Second,
counsel for the applicant relies on the decision in Solis Perez v. Canada
(Minister of Citizenship and Immigration), 2008 FC 663 as well as other
cases for the proposition his removal from Canada will result in his leave and
judicial review application becoming moot or with practical effect since he
will no longer be in Canada.
[22]
In a very
recent decision dated October 27, 2008 involving a deportation to the United
States, my colleague Justice Mosley in Lakha v. the Minister of Citizenship
and Immigration et al, 2008 FC 1204 (Lakha) had an opportunity to
comment on this issue.
[23]
He
wrote the following at paragraphs 21 and 22 which I subscribe to:
[21]
I do not draw from these decisions the conclusion that an application for
judicial review is rendered moot in every case where the applicant has been
removed from Canada. On the particular facts of the matter
there may no longer be a “live controversy” between the parties with respect to
the PRRA decision if the applicant is no longer in Canada: Perez, above,
at paragraph 26. However, whether an application for judicial review is moot,
and if found to be moot, whether the Court will exercise its discretion to hear
the matter, will turn on the facts of each case.
[22]
In the present case and on the basis of the evidence before me, I am not
prepared to conclude that the applicant’s challenge to the PRRA officer’s
decision would be rendered moot by his removal to the US.
But even if I were to accept that proposition, I would not agree with the
applicant’s contention that irreparable harm would result from such a finding.
It remains open to the applicant to seek the protection of the US.
[24]
Finally, I
cite Evans J.A.’s decision in Palka v. Canada (Minister of Public Safety and Emergency
Preparedness),
2008 FCA 165 where he wrote the following at paragraphs 18, 19 and 20:
18 The Palkas argue that, if they are
denied a stay, their appeal from Justice Mactavish's decision will be nugatory,
since it will be dismissed for mootness. This, they say, constitutes
irreparable harm. I do not agree.
19 First, even if their appeal
is moot, the Court may decide to hear it in its discretion, on the ground that
the question certified by Justice Mactavish may arise repeatedly and be evasive
of review. To this end, I note that the question certified has been the subject
of other decisions in the Federal Court and is clearly one of some difficulty.
20 Second, even if a refusal of a stay
does render the appeal nugatory, this does not necessarily constitute
irreparable harm. It all depends on the facts of the individual case: El
Ouadi v. Canada (Solicitor General), [2005] F.C.J. No. 189, 2005 FCA 42. In
the present case, the Board and the PRRA officer rendered negative decisions on
applications made on the basis of a fear of physical harm in Poland. In view of these findings, I am not persuaded that the
hearsay statements in the affidavit sworn for the purpose of this proceeding
establish that Jadwiga would be at risk of violence if returned to Poland.
[25]
As a
result, the applicant fails on this point.
[26]
Third,
counsel for the applicant argues Mr. Delisle’s removal to the United States will lead to his detention
because of his lack of status there. In support of that proposition, the
applicant filed a letter dated October 19, 2008 from the Legal Services
Coordinator at the Vermont Refugee Assistance Inc. who expresses the
following views:
·
“We have
learned that he was ordered deported from the United States on account of two
criminal convictions” [and that consequently] … “he runs a high risk of being
detained on arrival. Further, there will be no bond set for his release and it
can be expected that he will face a considerable amount of time in detention”.
·
She states
if arrested by U.S. authorities when entering the United States through Lacolle
“he would face detention in the Clinton County Jail in Plattsburg, N.Y. where
the majority of the detainees are is custody for criminal activity” with no special
recognition who are subject to immigration custody.
[27]
With
respect, I cannot give any weight to this view because it is premised on his
having been deported from the United
States which is
a fact not established anywhere in the evidence and is contrary to it.
[28]
There is a
long line of cases from this Court that, without specific evidence in the
record, removal to the United
States does not constitute
irreparable harm even if the person may be detained because the United States is presumed to treat its detainees
fairly. This line of cases was expressed by Justice Nadon in Mikhailov v.
the Minister of Citizenship and Immigration, [2000] F.C.J. No. 642;
continued through in Akyol v. Canada (Minister of Citizenship and
Immigration), [2003] F.C.J. No. 1182; reiterated in Joao v. Canada
(Minister of Citizenship and Immigration), 2005 FC 880 and confirmed in
cases such as Perry v. the Minister of Public Safety and Emergency
Preparedness, 2006 FC 378 and Qureshi v. the Minister of Citizenship and
Immigration et al, 2007 FC 97.
[29]
Recently,
the Federal Court of Appeal in Hinzman v. Canada (Minister of Citizenship
and Immigration), 2007 FCA 171 held that the governmental institutions in
the U.S. had democratic systems of checks and balances, an independent
judiciary and constitutional guarantees of due process which I might add have recently
been re-affirmed by the Supreme Court of the United States in matters of habeas
corpus involving the Guantanamo detainees detained after 9/11.
[30]
Counsel
for the applicant also argues the United States will deport him to Cuba where he is at risk. He asserts he has
no legal status in the United
States.
[31]
In Lakha,
Justice Mosley also had an opportunity to consider this point. He stated the
onus was on the applicant to establish that he would be removed to the People’s
Republic of China (PRC) and that he would
suffer irreparable harm and he failed to do so. His conclusion was he was not
prepared to speculate “that the American authorities would remove him [in that
case] to the PRC”.
[32]
The same
situation prevails before me. No evidence was provided to this Court which
would show the United
States would
return the applicant to his country of nationality. Such evidence has been
provided in other cases which were considered by the Federal Court. Such
evidence, tendered through affidavit evidence of American immigration practitioners
covered such points as that person’s status on re-entry to the United States
when removed from Canada, the eligibility of that person to apply for asylum in
the United States, the likelihood of release from detention on bond or
otherwise and his ability to apply for withholding from removal from the United
States.
[33]
The
applicant’s bald assertion he is without legal status in the United States does not of itself establish
an intention of the United States to deport him to Cuba. This is clear from another recent
decision of Justice Mosley dated November 5, 2008 in Wangden v. Canada
(Minister of Citizenship and Immigration et al), 2008 FC 1230 another case
involving removal to the United States. Justice Mosley had extensive affidavit
evidence before him. It is clear from that evidence there are different kinds
of status for migrants in the United States; that the United States is a
signatory to the Convention which contains an obligation not to remove a person
to a country where that person would be at risk and that the mechanism of
withholding from removal (equivalent to a limited PRRA under section 112(3) of
the Act) ensures that the United States respects its Convention obligations
against non-refoulement.
[34]
In my
view, in the specific circumstances of this case, particularly when he seemed
to have been granted some kind of status after he fled Cuba, he had an
obligation to be forthcoming to this Court in explaining his status and the
availability of recourse to the U.S. justice system if the United States
indicated its intention to remove him to Cuba. This, once again, he has failed
to do. The result is that the argument of irreparable harm on account of
removal remains speculative and as a result cannot be maintained.
(c) Balance of convenience
[35]
Not having
established irreparable harm, the balance of convenience favours the Minister
in discharging his obligations under section 48 of the Act to remove the
applicant as soon as practicable.
[36]
For these
reasons, this stay application is dismissed.
ORDER
THIS COURT ORDERS that this stay application is
dismissed.
“François
Lemieux”
____________________________
Judge
SCHEDULE “A”
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Immigration and Refugee Protection Act (2001, c. 27)
Application for protection
112. (1) A person in
Canada, other than a person referred to in subsection 115(1), may, in
accordance with the regulations, apply to the Minister for protection if they
are subject to a removal order that is in force or are named in a certificate
described in subsection 77(1).
Exception
(2)
Despite subsection (1), a person may not apply for protection if
(a) they are the subject of an authority to proceed issued
under section 15 of the Extradition Act;
(b) they have made a claim to refugee protection that has
been determined under paragraph 101(1)(e) to be ineligible;
(c) in the case of a person who has not left Canada since
the application for protection was rejected, the prescribed period has not
expired; or
(d) in the case of a person who has left Canada since the
removal order came into force, less than six months have passed since they
left Canada after their claim to refugee protection was determined to be
ineligible, abandoned, withdrawn or rejected, or their application for
protection was rejected.
Restriction
(3) Refugee protection may not result from an application
for protection if the person
(a) is determined to be inadmissible on grounds of
security, violating human or international rights or organized criminality;
(b) is determined to be inadmissible on grounds of serious
criminality with respect to a conviction in Canada punished by a term of
imprisonment of at least two years or with respect to a conviction outside
Canada for an offence that, if committed in Canada, would constitute an
offence under an Act of Parliament punishable by a maximum term of
imprisonment of at least 10 years;
(c) made a claim to refugee protection that was rejected
on the basis of section F of Article 1 of the Refugee Convention; or
(d) is named in a certificate referred to in subsection
77(1).
Consideration of application
113. Consideration of an application for protection shall
be as follows:
(a) an applicant whose claim to refugee protection has
been rejected may present only new evidence that arose after the rejection or
was not reasonably available, or that the applicant could not reasonably have
been expected in the circumstances to have presented, at the time of the
rejection;
(b) a hearing may be held if the Minister, on the basis of
prescribed factors, is of the opinion that a hearing is required;
(c) in the case of an applicant not described in
subsection 112(3), consideration shall be on the basis of sections 96 to 98;
(d) in the case of an applicant described in subsection
112(3), consideration shall be on the basis of the factors set out in section
97 and
(i) in the case of an applicant for protection who is
inadmissible on grounds of serious criminality, whether they are a danger to
the public in Canada, or
(ii) in the case of any other applicant, whether the
application should be refused because of the nature and severity of acts
committed by the applicant or because of the danger that the applicant
constitutes to the security of Canada.
Immigration and Refugee Protection Regulations
(SOR/2002-227)
Applicant described in s. 112(3) of the Act
172.
(1) Before making a decision to allow or
reject the application of an applicant described in subsection 112(3) of the
Act, the Minister shall consider the assessments referred to in subsection
(2) and any written response of the applicant to the assessments that is
received within 15 days after the applicant is given the assessments.
Assessments
(2) The following assessments shall be given to the
applicant:
(a) a written assessment on the basis of the factors set
out in section 97 of the Act; and
(b) a written assessment on the basis of the factors set
out in subparagraph 113(d)(i) or (ii) of the Act, as the case may be.
Certificate
(2.1) Despite subsection (2), no assessments shall be
given to an applicant who is named in a certificate until a judge under
section 78 of the Act determines whether the certificate is reasonable.
When assessments given
(3) The assessments are given to an applicant when they
are given by hand to the applicant or, if sent by mail, are deemed to be
given to an applicant seven days after the day on which they are sent to the
last address that the applicant provided to the Department.
Applicant not described in s. 97 of the Act
(4) Despite subsections (1) to (3), if the Minister
decides on the basis of the factors set out in section 97 of the Act that the
applicant is not described in that section,
(a) no written assessment on the basis of the factors set
out in subparagraph 113(d)(i) or (ii) of the Act need be made; and
(b) the application is rejected.
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Loi sur l’immigration et la protection
des réfugiés (2001, ch. 27)
Demande de protection
112. (1) La personne se trouvant au
Canada et qui n’est pas visée au paragraphe 115(1) peut, conformément aux
règlements, demander la protection au ministre si elle est visée par une
mesure de renvoi ayant pris effet ou nommée au certificat visé au paragraphe
77(1).
Exception
(2) Elle n’est pas admise à demander la
protection dans les cas suivants :
a) elle est visée par un arrêté
introductif d’instance pris au titre de l’article 15 de la Loi sur
l’extradition;
b) sa demande d’asile a été jugée
irrecevable au titre de l’alinéa 101(1)e);
c) si elle n’a pas quitté le Canada après
le rejet de sa demande de protection, le délai prévu par règlement n’a pas
expiré;
d) dans le cas contraire, six mois ne se
sont pas écoulés depuis son départ consécutif soit au rejet de sa demande
d’asile ou de protection, soit à un prononcé d’irrecevabilité, de désistement
ou de retrait de sa demande d’asile.
Restriction
(3) L’asile ne peut être conféré au
demandeur dans les cas suivants :
a) il est interdit de territoire pour
raison de sécurité ou pour atteinte aux droits humains ou internationaux ou
criminalité organisée;
b) il est interdit de territoire pour
grande criminalité pour déclaration de culpabilité au Canada punie par un
emprisonnement d’au moins deux ans ou pour toute déclaration de culpabilité à
l’extérieur du Canada pour une infraction qui, commise au Canada,
constituerait une infraction à une loi fédérale punissable d’un
emprisonnement maximal d’au moins dix ans;
c) il a été débouté de sa demande d’asile
au titre de la section F de l’article premier de la Convention sur les
réfugiés;
d) il est nommé au certificat visé au
paragraphe 77(1).
Examen de la demande
113. Il est disposé de la demande comme
il suit :
a) le demandeur d’asile débouté ne peut
présenter que des éléments de preuve survenus depuis le rejet ou qui
n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’il
n’était pas raisonnable, dans les circonstances, de s’attendre à ce qu’il les
ait présentés au moment du rejet;
b) une audience peut être tenue si le
ministre l’estime requis compte tenu des facteurs réglementaires;
c) s’agissant du demandeur non visé au
paragraphe 112(3), sur la base des articles 96 à 98;
d) s’agissant du demandeur visé au
paragraphe 112(3), sur la base des éléments mentionnés à l’article 97 et,
d’autre part :
(i) soit du fait que le demandeur
interdit de territoire pour grande criminalité constitue un danger pour le
public au Canada,
(ii) soit, dans le cas de tout autre
demandeur, du fait que la demande devrait être rejetée en raison de la nature
et de la gravité de ses actes passés ou du danger qu’il constitue pour la
sécurité du Canada.
Règlement sur l’immigration et la
protection des réfugiés (DORS/2002-227)
Demandeur visé au paragraphe 112(3) de la
Loi
172. (1) Avant de prendre sa décision
accueillant ou rejetant la demande de protection du demandeur visé au
paragraphe 112(3) de la Loi, le ministre tient compte des évaluations visées
au paragraphe (2) et de toute réplique écrite du demandeur à l’égard de ces
évaluations, reçue dans les quinze jours suivant la réception de celles-ci.
Évaluations
(2) Les évaluations suivantes sont
fournies au demandeur :
a) une évaluation écrite au regard des
éléments mentionnés à l’article 97 de la Loi;
b) une évaluation écrite au regard des
éléments mentionnés aux sous-alinéas 113d)(i) ou (ii) de la Loi, selon le
cas.
Certificat
(2.1) Malgré le paragraphe (2), aucune
évaluation n’est fournie au demandeur qui fait l’objet d’un certificat tant
que le juge n’a pas décidé du caractère raisonnable de celui-ci en vertu de
l’article 78 de la Loi
Moment de la réception
(3) Les évaluations sont fournies soit
par remise en personne, soit par courrier, auquel cas elles sont réputées
avoir été fournies à l’expiration d’un délai de sept jours suivant leur envoi
à la dernière adresse communiquée au ministère par le demandeur.
Demandeur non visé à l’article 97 de la
Loi
(4) Malgré les paragraphes (1) à (3), si
le ministre conclut, sur la base des éléments mentionnés à l’article 97 de la
Loi, que le demandeur n’est pas visé par cet article :
a) il n’est pas nécessaire de faire
d’évaluation au regard des éléments mentionnés aux sous-alinéas 113d)(i) ou
(ii) de la Loi;
b) la demande de protection est rejetée.
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