Date:
20130619
Docket:
IMM-3168-13
Citation:
2013 FC 688
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Montréal,
Quebec, June 19, 2013
PRESENT: The
Honourable Mr. Justice Roy
BETWEEN:
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ABOUDRAMAN FOFANA
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Applicant
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and
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MINISTER OF
CITIZENSHIP
AND IMMIGRATION
AND
MINISTER OF PUBLIC
SAFETY
AND EMERGENCY
PREPAREDNESS
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Respondents
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REASONS
FOR ORDER AND ORDER
[1]
Aboudraman
Fofana, a citizen of Côte d’Ivoire and the applicant in this case, is appealing
to this Court to obtain a stay of removal scheduled for June 20, 2013.
[2]
The
applicant is inadmissible to Canada. His immigration history in Canada began with
his arrival in Montréal on August 28, 2008. He has an Ivorian passport whose
photo was trafficked. He quickly became the subject of an investigation for his
possible participation in war crimes.
[3]
This
request ultimately led to a decision by the Refugee Protection Division (RPD),
which concluded that the applicant should be excluded from the Refugee
Convention as Article 1F of the Convention applies. Plainly, those covered by
that Article cannot obtain international protection in countries if they claim
refugee protection. It is sufficient to establish that there are serious
reasons for considering that the acts were committed by the individual
(including complicity); this standard is of course lower than the criminal law standard,
which requires proof beyond a reasonable doubt, but it is higher than the mere existence
of suspicions. Evidence must be established.
[4]
In
this case, the RPD stated that it was satisfied that, for two years, the applicant
was present at a roadblock with a rebel group (Forces Nouvelles), where he took
part in extorting money from travellers. Indeed, the applicant admitted his
participation during those two years. The RPD was also satisfied that these
extortion practices took place as part of an armed conflict not of an international
character. This is what is required to conclude that there are serious reasons
for considering that the applicant committed a war crime. He could not
therefore benefit from Canada’s protection as a refugee.
[5]
The
application for judicial review of that decision before this Court was
dismissed on July 6, 2011. The applicant then applied for permanent
residence under section 25 of the Immigration and Refugee Protection Act,
SC 2001, c 27 (the Act). I reproduce subsection (1) of that section:
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25.
(1) Subject to subsection (1.2), the Minister must, on request of a foreign
national in Canada who applies for permanent resident status and who is inadmissible
or does not meet the requirements of this Act, and may, on request of a
foreign national outside Canada who applies for a permanent resident visa,
examine the circumstances concerning the foreign national and may grant the
foreign national permanent resident status or an exemption from any
applicable criteria or obligations of this Act if the Minister is of the
opinion that it is justified by humanitarian and compassionate considerations
relating to the foreign national, taking into account the best interests of a
child directly affected.
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25.
(1) Sous réserve du paragraphe (1.2), le ministre doit, sur demande d’un
étranger se trouvant au Canada qui demande le statut de résident permanent et
qui soit est interdit de territoire, soit ne se conforme pas à la présente
loi, et peut, sur demande d’un étranger se trouvant hors du Canada qui
demande un visa de résident permanent, étudier le cas de cet étranger; il
peut lui octroyer le statut de résident permanent ou lever tout ou partie des
critères et obligations applicables, s’il estime que des considérations d’ordre
humanitaire relatives à l’étranger le justifient, compte tenu de l’intérêt
supérieur de l’enfant directement touché.
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[6]
An
immigration officer disposed of that last application on April 9, 2013. For
some unknown reason, the applicant originally presented only a letter of less
than two pages as being the decision of April 9 on the application under
section 25 of the Act. He filed an application for leave and judicial review on
May 1, 2013, on the basis of that letter.
[7]
It
should be added that on May 8, 2013, the application for a pre-removal
risk assessment was denied in a decision with detailed reasons. There was no
application for leave and judicial review of that decision. A stay application
to a removal officer was also refused on June 6, 2013. No application for
leave and judicial review was filed regarding that decision.
[8]
Instead,
it was the decision of April 9 refusing the application under section 25
that is the subject of judicial review and the legal remedy underlying the stay
application. This procedural mess is not complete without additional
proceedings undertaken by the applicant because his memorandum for the judicial
review commenced on May 1 was filed beyond the time limit, which had
expired on May 31. But that is not all.
[9]
His
motion record, in this case, is amorphous. His notice of motion describes a
judicial review case that is [Translation] “extremely
strong, and the submissions made in support of it clearly state why ministerial
relief should have been applied”. The same notice complains of the immigration
officer’s refusal to exercise her jurisdiction and to make a decision. It states
that [Translation] “the
officer could not be unaware that the application was based on section 25
of the IRPA and required that the analysis be based on humanitarian and
compassionate considerations”. The notice is dated June 11, 2013.
[10]
The
applicant’s “submissions” are cast in the same mould. They essentially allege that
the immigration officer refused to exercise her jurisdiction in violation of
section 25. I reproduce paragraphs 20 and 21 of the “submissions”:
[Translation]
20. Section 25 also states that the Minister or the
officers exercising her jurisdiction must assess applications submitted to her
under this section. Thus, the officer could not decline jurisdiction and had to
diligently examine the arguments submitted to her by the applicant. The refusal
to examine an application on humanitarian and compassionate grounds must be treated
as a refusal to exercise jurisdiction, that is, a decision made Infra Petita,
which is a reason allowing the Federal Court to intervene under its reviewing
power.
21. We submit that the officer’s automatic refusal
of the application based on humanitarian and compassionate grounds filed by
Mr. Fofana, without giving any weight to the arguments he put forward and
claiming to be bound by the inadmissibility order must be considered a refusal
to exercise jurisdiction. This is a fatal error in law, which makes the decision
erroneous and reviewable by the Federal Court.
[11]
These
“submissions” sought to support the applicant’s claim that a serious question
is before the Court on judicial review of the decision under section 25 of the
Act. Thus, the applicant concluded this part of his written memorandum at
paragraph 51:
[Translation]
51. In view of the foregoing, it is clear that the
officer has made bad use or rather has made no use of her jurisdiction. She
made a decision that is completely erroneous with regard to the nature of the
applicant’s submissions and ignored the exceptional circumstances, which meant
that his application should have been able to be granted ministerial exemption.
In this context, the humanitarian and compassionate considerations related to
the applicant’s case strongly favour his being granted permanent residence. At
least, the application should have been examined seriously and diligently,
which was not done.
[12]
These
“submissions” are also dated June 11. It is now clear that the applicant was arguing
on the basis of a letter dated April 9, 2013, which did not deal with his
application under section 25. The applicant’s record did not contain the decision
dated April 9, 2013, which is eight pages long and deals directly with the
application. He did not learn of its existence until June 12. Thus, while the
applicant is arguing that a serious question justifying a refusal exists, he
presents an argument as if the impugned decision had not examined the issue of
the best interests of the child. That was not the case. The immigration officer
dealt with that issue fully.
[13]
I
like to think that this was an error in good faith. However, the Court notes
the surprise expressed by counsel for the respondent, who wanted the
application dismissed. Despite clear deficiencies, the Court preferred to hear
the parties and to dispose of the motion on the merits because of the
importance of a removal order.
[14]
The
removal order and the decision to refuse a stay, dated June 6, are not
being challenged. The application for a pre-removal risk assessment also was not
challenged, and it would seem that an undisputed removal order is also on file.
The removal order is therefore not technically disputed. In any case, given the
finding I have made, a quick review of the legal criteria that must be met will
suffice.
[15]
A
person who applies for a stay must meet a three-pronged test in this regard:
(1)
Is
there a serious issue to be tried?
(2)
Will
the applicant suffer irreparable harm?
(3)
Does
the balance of convenience lie in the applicant’s favour?
To succeed, the applicant must
satisfy the Court that the answer to each of these questions is yes.
(RJR – MacDonald Inc. v Canada (Attorney General),
[1994] 1 S.C.R. 311 and Toth v Canada (Minister of Employment and Immigration),
(1988), 86 NR 302 (FCA)).
[16]
It
is quite clear that the applicant’s original argument that the immigration
officer did not exercise her jurisdiction and did not deal with the issue of
the best interests of the child is flawed. The decision dated April 9, rather
than the letter against which the argument was presented, deals with it amply.
[17]
Counsel
for the applicant therefore changed gears to attempt to contest the RPD’s
decision refusing to grant refugee status for participation in war crimes
(serious reasons to consider). I advised counsel several times that he could
not indirectly challenge that decision especially since our Court had refused
leave for judicial review. A collateral attack is not permitted. Despite this,
counsel persisted. The argument is rejected.
[18]
Counsel
ended by challenging the argument that the best interests of the child should
have prevailed and that the immigration officer erred in not deciding in the
applicant’s favour. In other words, it was not that the immigration officer had
not considered the issue. Instead, her decision was unreasonable. The applicant
is the father of a 16-month-old child, and his spouse is expecting twins in a
few months. In addition, he is also the father of another child, who lives with
his mother in Côte d’Ivoire.
[19]
It
must be conceded that the application under section 25 of the Act, which
includes the consideration of the best interests of the child, is an
exceptional and highly discretionary measure. The applicant must contend with
the decision of the Federal Court of Appeal in Legault v Canada (Minister of
Citizenship and Immigration), [2002] 4 FC 358. For our purposes, it is
sufficient to reproduce paragraph 12:
12 In
short, the immigration officer must be “alert, alive and sensitive” (Baker,
supra, at paragraph 75) to the interests of the children, but once she has
well identified and defined this factor, it is up to her to determine what
weight, in her view, it must be given in the circumstances. The presence of
children, contrary to the conclusion of Justice Nadon, does not call for a
certain result. It is not because the interests of the children favour the fact
that a parent residing illegally in Canada should remain in Canada (which, as
justly stated by Justice Nadon, will generally be the case), that the Minister
must exercise his discretion in favour of said parent. Parliament has not
decided, as of yet, that the presence of children in Canada constitutes in
itself an impediment to any “refoulement” of a parent illegally residing
in Canada (see Langner v. Canada (Minister of Employment and Immigration),
(1995), 29 C.R.R. (2d) 184 (F.C.A.), leave to appeal refused, [1995] 3 S.C.R.
vii).
[20]
As
indicated, a review of the immigration officer’s decision very quickly shows
that particular attention was given to the issue. The immigration officer was “alert,
alive and sensitive” to the interests of the child. Reading her reasons can
only convince me that, in the context of an application for a stay of a removal
order, the immigration officer exercised discretion reasonably. This finding does
not imply that this is the only conclusion that could have been reached. “Tribunals
have a margin of appreciation within the range of acceptable and rational
solutions”. (Dunsmuir v New Brunswick, [2008] 1 S.C.R. 190, at paragraph
47).
[21]
Undoubtedly,
it is desirable for children to enjoy the presence of both their parents. But
the Federal Court of Appeal is clear: it falls to the Minister’s representative
to attribute the weight that is appropriate. In doing so, the Minister or his or
her representative must also consider the integrity of the immigration system. Thus,
paragraph 19 of Legault, above, reads as follows:
19 In short, the Immigration Act and
the Canadian immigration policy are founded on the idea that whoever comes to
Canada with the intention of settling must be of good faith and comply to the
letter with the requirements both in form and substance of the Act. Whoever
enters Canada illegally contributes to falsifying the immigration plan and
policy and gives himself priority over those who do respect the requirements of
the Act. The Minister, who is responsible for the application of the policy and
the Act, is definitely authorized to refuse the exception requested by a person
who has established the existence of humanitarian and compassionate grounds, if
he believes, for example, that the circumstances surrounding his entry and stay
in Canada discredit him or create a precedent susceptible of encouraging
illegal entry in Canada. In this sense, the Minister is at liberty to take into
consideration the fact that the humanitarian and compassionate grounds that a
person claims are the result of his own actions.
[22]
In
this case, the immigration officer did just that. There may be a little bit of
hyperbole in the immigration officer’s conclusion, but that does not take
anything away from the fact that discretion must take into account other
considerations:
[Translation]
I took the family background into account, and I was
especially sensitive to the best interests of the child. However, these factors
are not more important than all the others, and, in my balancing, I gave more
weight to the acts committed on behalf of the Forces Nouvelles rebels, who were
guilty of generalized abuses towards civilians: extortion, rape, arbitrary
detention and sometimes execution.
[23]
The
best interests of the child are always a serious issue. That is not the issue
meant by the test. Rather, the issue is whether the immigration officer’s
treatment of the issue can be considered the serious issue meant by the three-pronged
test. In my opinion, the applicant did not demonstrate that his claim was
serious in this regard. I note that the applicant, through his counsel, made point
blank statements at the hearing about his family situation if he has to leave
Canada that contradict other statements made in different contexts. It is
useless to emphasize the credibility and the weight that can be attributed to
these statements. They had to be ignored by the Court.
[24]
Finally,
the applicant tried to briefly make arguments of law relying on the Charter
of Rights and Freedoms, international law and even the Civil Code of
Québec. The applicant made little mention of these arguments at the
hearing. He was right to do so. As presented, these arguments are without value
and cannot constitute a serious issue.
[25]
It
flows from this that the applicant failed the first component of the test. That
is fatal. It is sufficient to fail one of the three components of the test for
the stay to be refused. But he would also have failed the second and third
components. In fact, he did not establish that the irreparable harm he alleges
is not the harm that normally results from a removal (Tesoro v Canada
(Minister of Citizenship and Immigration), 2005 FCA 148, Selliah v
Canada (Minister of Citizenship and Immigration), 2004 FCA 261; Singh
Atwal v Canada (Minister of Citizenship and Immigration), 2004 FCA 427, Melo
v Canada (Minister of Citizenship and Immigration), [2000] FCJ No. 403, 188
FTR 39). It is settled law in this Court that the mere presence of children is
insufficient, in itself, to establish irreparable harm. This is even less so
when the reasons for removal are of the type at issue in this case. I also note
that the judicial review of the decision regarding the application under
section 25 will continue to follow its course. If the applicant succeeds
in his endeavour to reverse the immigration officer’s decision, he will be able
to file a new permanent residence application on humanitarian and compassionate
grounds before another decision-maker. At the stage of staying the removal
order, he did not discharge his burden of proof.
[26]
I
would also have found that, in this case, the necessity in the Minister’s view
to remove a person who is inadmissible because he has committed war crimes, a
decision that is now more than two years old, deserves to be attributed some
weight in the balance of convenience (Legault, above). The applicant’s
illegal entry into the country in 2008 put him in a precarious situation with
regard to immigration; he has been without status since March 2011 and is inadmissible.
To quote the Federal Court of Appeal, “the Minister is at liberty to take into
consideration the fact that the humanitarian and compassionate grounds that a
person claims are the result of his own actions”. The balance of convenience is
not favourable to the applicant.
[27]
Accordingly,
despite the sympathy that the Court feels for the applicant’s family, the state
of the law applied to the facts put in evidence and the arguments presented
lead me to find that the application for a stay of the enforcement action must be
dismissed.
ORDER
THE
COURT ORDERS that the application for a stay of the
enforcement action is dismissed.
“Yvan Roy”
Certified
true translation
Margarita
Gorbounova, Translator
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