Date:
20130815
Docket:
IMM-4707-13
Citation:
2013 FC 869
Montréal, Quebec,
August 15, 2013
PRESENT: The
Honourable Mr. Justice Annis
BETWEEN:
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LARISSA LEGNIN
AND
NIKOL LEGNIN
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
The
applicants, citizens of Russia, are asking that the Court order a stay of
execution of their removal from Canada planned on Wednesday August 28, 2013, at
7:00 a.m.
[2]
After
spending more than six years in Israel, the applicants arrived in Canada in 2006 and claimed refugee protection.
[3]
On
July 29, 2011, a Senior Immigration Officer dismissed the PRRA application.
[4]
On July 4, 2011, the applicants
filed an Application for permanent residence on Humanitarian and Compassionate
Considerations (H&C).
[5]
On
September 20, 2011, the applicants met with the Removal Officer and received
their negative PRRA decision. They were informed that their removal orders were
now enforceable and that they had the right to contest the negative PRRA
decision. The applicants stated that they would conform with the departure
order. They did not challenge the negative PRRA decision before the Federal
Court.
[6]
However,
they asked that their removal be deferred so that the applicant, Larissa, could
act as a witness in a criminal hearing. The deferral request also contained
allegations concerning the best interest of the child, Nikol, and concerning a
pending H&C application.
[7]
The
Law enforcement Officer first rejected the deferral request on the basis of the
H&C application. Nevertheless, on December 8, 2011, the Removal Officer
granted their request to allow the applicant, Larissa, to testify in a criminal
matter.
[8]
On
January 4, 2013, the applicants met with the Removal Officer. Through their
counsel, who was present at the meeting, the applicants requested an indefinite
deferral of removal, alleging the “best interest of the child” and the determination
of a pending H&C application which was filed in February 2012. The said
request was granted for a period of three months by the Officer, however, not
on the basis of the outstanding H&C application, but to allow the applicants
to adequately prepare for their departure.
[9]
The issue of
whether the H&C application was a new procedure was the subject of
submissions by the parties during the hearing. I accept the notes of the
officer as proof of the following:
M. Genik m’informe qu’il a dépose une nouvelle
demande humanitaire car la première serait truffée d’erreur, faite par l’ancien
avocate qui n’a plus le mandat de représenter le sujet.
[10]
On
March 1, 2013, the applicants’ removal was deferred for a second time to allow
the child, Nikol, to complete her school year.
[11]
On
May 28, 2013, the applicants, through their counsel, submitted another administrative
deferral of removal request until a decision was rendered on their H&C application.
That same day, the Law Enforcement Officer rejected the deferral request. That decision for removal is the
subject of this stay application.
Analysis
[12]
All
three criteria of Toth v Canada (Minister of Employment and Immigration)
(1988), 86 NR 302 (FCA) must be met for the Court to grant the motion for
a stay. If the applicants fail to meet even one of them, the Court cannot
grant the requested relief.
[13]
The
issuance of a stay is an extraordinary remedy. The applicant must demonstrate
“special and compelling circumstances” that would warrant “exceptional judicial
intervention”. The applicants have failed to do so in the case at bar.
No
Serious Issue
[14]
The law
concerning a deferral application in the face of an H&C application is
described by O’Keefe J. in Ortiz v Canada (Minister of Public Safety and
Emergency Preparedness), 2012 FC 18 at paras 43 to 46 as follows:
43
Generally, an outstanding H&C application, absent special considerations,
is not sufficient on its own to justify delay unless there is a threat to
personal safety (see Ramada v Canada (Solicitor General), 2005 FC 1112,
[2005] FCJ No 1384 at paragraph 3; and Wang v Canada (Minister of
Citizenship and Immigration), [2001] 3 FC 682, [2001] FCJ No 295 at
paragraph 45). As stated by Mr. Justice Pierre Blais in the concurring opinion
in Baron above, at paragraph 87:
H&C
applications are not intended to obstruct a valid removal order. Where a PRRA
has revealed that the applicants are not at risk if they are returned, then the
applicants are intended to make future requests for permanent residence from
their home country.
44
Further, the scope of a removal officer's considerations in assessing a
deferral request is limited. In general, deferral should only be granted
"where failure to defer will expose the applicant to the risk of death,
extreme sanction or inhumane treatment" (see Wang above, at
paragraph 48).
45
Removal officers are not positioned to evaluate all the evidence that might be
relevant in an H&C application (see Ramada above, at paragraph 7).
However, they can consider whether there are good reasons to delay removal,
such as a person's ability to travel, the need to accommodate other commitments
such as school obligations or compelling circumstances such as H&C
considerations (see Ramada above, at paragraph 3). They can also
consider whether the consequences of removal can be remedied by readmission
after an outstanding application is approved (see Wang above, at
paragraph 48).
46
In terms of affected children, their immediate interests should be treated
fairly and with sensitivity (see Joarder v Canada (Minister of Citizenship
and Immigration), 2006 FC 230, [2006] FCJ No 310 at paragraph 3). However,
removal officers have "no obligation to substantially review the
children's best interest before executing a removal order" (see Baron
above, at paragraph 57).
[15]
The applicants’
principal argument is that the applicant daughter, who does not read or write
Russian, and appears to have a learning difficulty is at the mercy of the
Russian school system which is notorious for shunting/ignoring “problem”
children, and as such would actually encourage her to quit school.
[16]
The
applicants point out that the daughter has had her entire education in the Quebec school system; that she is receiving extra individualized support in a proactive
fashion and that her separation from her Quebec school however temporary would
harm the child’s education.
[17]
Reference is
also made to the child’s two permanent resident sisters who share caregiving
responsibilities.
[18]
The
applicants contend that the deferral officer did not give the proper
consideration to the evidence of the child’s situation.
[19]
The child has
filed an H&C application and the applicants seek a deferral until such time
as the decision is rendered in that matter.
[20]
I am in
agreement with the respondent that the Officer considered the allegations and
evidence and that his decision is reasonable in the circumstances. The factual
basis for the applicants is speculative and does not meet the high threshold
required for a stay of a removal described above.
[21]
The evidence
is insufficient and is dated in respect of the child’s learning problems, which
her counsel acknowledges could not in any event be described as a disability.
There are no tests or other supporting documentation besides the letter from
her school. Moreover, two years have passed since that letter and an update
should have been provided in the interval. Similarly, the evidence on the
child’s situation in Russia is also speculative and lacking in probative
weight.
[22]
Based on
whether the applicants filed a fresh application in February 2012, there was
considerable debate over hardship from the child being outside of Canada for up to a year or even two or three years, should the applicants succeed in their
H&C application. Again, any conclusions would be speculative. The child
speaks Russian fluently and given that it is not clear that she retains a learning
difficulty, the hardship from one or two years outside of Canada is not of sufficient significance to warrant consideration in staying the removal.
[23]
It is noted
that there appears to be a developing jurisprudence in the Federal Court
suggesting that the December 15, 2012 amendment to s. 48(2) further narrows the
scope of the Court’s already limited discretion by requiring the removal to be
executed “as soon as possible”, as opposed to the former wording “as reasonably
practicable”.
[24]
I would agree
that the amendment is intended to convey the need to minimize delays in
executing removal orders. Given that the applicants have already benefited from
two deferrals of their removal, the need for compliance with s. 48(2) would
appear to be heightened.
Irreparable Harm
[25]
Even were I
to conclude that there was a serious issue, there is insufficient evidence from
that already referred to which would form the basis to conclude that the child
will suffer irreparable harm from her removal. The evidence in the main is
speculative and insufficient to convey irreparable harm sufficient to warrant a
stay of her removal.
Conclusion
and Order
[26]
Accordingly,
for all of the reasons above, the
motion for stay of removal is denied, and the court so orders.
JUDGMENT
THIS
COURT’S JUDGMENT is that the
motion for stay of removal is denied.
“Peter Annis”
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