Date: 20080430
Docket: A-169-08
Citation: 2008 FCA 165
Present: EVANS
J.A.
BETWEEN:
JADWIGA PALKA
PAULA PALKA
Appellants
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER
EVANS
J.A.
[1]
This is a
motion by Jadwiga Palka and her daughter, Paula Palka, for a stay of removal to
their country of nationality, Poland, pending the disposition of
an appeal to this Court. Their removal has been scheduled for May 3, 2008. I
heard the motion via teleconference with the parties’ counsel.
[2]
The Palkas
are appealing from a decision of the Federal Court, dated March 13, 2008 (2008
FC 342), in which Justice Mactavish dismissed the Palkas’ application for
judicial review of a refusal by an enforcement officer to defer their removal
from Canada, then scheduled for June 13, 2007, until their application for
permanent residence on humanitarian and compassionate grounds (“H&C”) had
been decided.
[3]
Justice
Mactavish held that the application for judicial review was moot, and did not
consider its merits. She based her finding of mootness on the fact that another
Judge of the Federal Court had stayed the Palkas’ removal scheduled for June
13, 2007, pending the disposition of their application for judicial review of
the officer’s refusal to defer their removal. Justice Mactavish rejected the
position taken by both the Palkas and the respondent, the Minister of Public
Safety and Emergency Preparednesss, that the passing of the scheduled removal
date did not render the application for judicial review moot because an
application for permanent residence on H&C grounds was outstanding. She
certified a question for appeal on the mootness issue.
[4]
To provide
some context to this motion for a stay of removal pending the disposition of
the Palkas’ appeal from Justice Mactavish’s decision, I shall summarize the
principal legal landmarks in their protracted and tangled immigration history.
They first came to Canada in April 1997. In 1999, they
applied for recognition as refugees on the ground of abuse by Jadwiga’s
husband. The Refugee Protection Division of the Immigration and Refugee Board
rejected the application because it did not find her evidence credible. An
application for leave and judicial review of the Board’s decision was dismissed
by the Federal Court in October 2001.
[5]
In August
2006, the Palkas applied for a Pre-Removal Risk Assessment (“PRRA”) based on
their fear of physical harm from Jadwiga’s husband and supported by new
evidence that was not before the Board. The PRRA officer concluded that the new
evidence did not “overcome” the Board’s negative credibility finding, and
rejected the application in January 2007. Their removal was scheduled for March
21, 2007, but was subsequently deferred until June 2007 to enable Paula to
complete her school year. Their application for judicial review of the PRRA
decision was dismissed by the Federal Court in January 2008.
[6]
Meanwhile,
in September 2006, the Palkas had applied for permanent residence on H&C
grounds. Their application is principally based on: their establishment in Canada; the presence in Canada of
other family members and the support needs of Jadwiga’s father; the best
interests of Paula, who is 15 years old; and their fear of violence in Poland. As I have already noted, no
decision on the H&C application has yet been received.
[7]
Shortly
after Justice Mactavish dismissed the application for judicial review of the
enforcement officer’s refusal to defer the removal that had been scheduled for
June 13, 2007, a direction was issued requiring the Palkas to report for
removal on May 3, 2008. The Palkas did not apply for judicial review of this
direction.
[8]
The grant
of a stay of removal of a non-citizen from Canada is within the discretion of
the Motions Judge who must exercise that discretion by applying the tripartite
test governing the award of an interlocutory injunction: Toth v. Canada
(Minister of Employment and Immigration) (1998), 86 N.R. 302 (FCA). Thus,
in order to obtain a stay, the Palkas must establish that: (i) their appeal
from Justice Mactavish’s decision raises a serious question; (ii) they will
suffer irreparable harm if a stay is not granted; and (iii) the balance of
convenience favours a stay and the maintenance of the status quo pending
the disposition of their appeal. I shall consider each part of the test in
turn.
(i) Is there a serious issue?
[9]
As a rule,
the “serious question” factor is readily satisfied. It should be easy to
persuade a Judge of this Court that a question certified for appeal by a Judge
of the Federal Court is not frivolous or vexatious. However, the Minister
argues that it is necessary to look beyond the mootness question certified by
Justice Mactavish to the underlying subject of the application for judicial
review, namely, the legality of the enforcement officer’s exercise of
discretion to refuse to defer the Palkas’ removal pending the disposition of
their H&C application. The Minister submits that, since a stay would give
the appellants most of the relief that that they are seeking in the application
for judicial review, the “serious question” test is more demanding than normal
and requires proof of a likelihood of success in the application.
[10]
Because I
have concluded that the Palkas cannot satisfy the other two parts of the test,
I am prepared to assume for the purpose of this motion that the certified
question is the relevant issue. As the Minister concedes, it is not vexatious
or frivolous.
(ii) Irreparable harm
[11]
The Palkas
say that, if removed to Poland, they will suffer various kinds of irreparable
harm: the loss of their H&C application; Jadwiga will suffer psychological
harm if forced to return to Poland; and their appeal to this Court from Justice
Mactavish’s decision will be rendered nugatory.
[12]
Before
considering these submissions in detail, I should emphasize that the normal
hardships attendant on deportation from Canada cannot constitute irreparable
harm for the purpose of the Toth test, otherwise a stay would be the
norm and removal the exception: Tesoro v. Canada (Minster of Citizenship and
Immigration), [2005] 4 F.C.R. 210 at para. 34. This would subvert
Parliament’s intention that those subject to a valid removal order must leave
immediately and the order enforced as soon as is reasonably practicable: Immigration
and Refugee Protection Act, S.C. 2001, c. 27, subsection 48(2).
(a) H&C application
[13]
The Palkas
argue that their immediate removal will undermine their application for
permanent residence on H&C grounds. I do not agree. Counsel conceded that
the Palkas’ H&C application will be processed, even after their removal
from Canada. If the Palkas’ H&C
application was granted after their removal, they may be permitted to return to
Canada.
[14]
The
existence of a pending H&C application has often been held not to
constitute irreparable harm, especially when, as here, the application was not
made in timely fashion after unsuccessful applications for refugee status and a
PRRA. Counsel says that it was justifiable for them to wait five years before
making their H&C application so that they could demonstrate establishment
in Canada. This was a tactical decision
and the appellants must live with the consequences.
[15]
Further,
the appellants have provided no evidence that removal will render their H&C
application nugatory. Denying a stay will not destroy the H&C application
insofar as it is based on their ties to Canada through the length of time that
they have been here, family, employment, friends and school, especially if, as
counsel claims, their application is “exceptionally strong on its merits”.
[16]
The Palkas
rely on Owusu v. Canada (Minister of Citizenship and
Immigration),
2003 FCA 470, to support their position on this point. However, the facts of Owusu
were unusual and very different from those in the present case: Mr Owusu’s
H&C application was based on his ability to continue to send money to
support his child in Ghana from his employment in Canada.
(b) psychological harm
[17]
Jadwiga
relies on a report from a psychologist stating that a return to Poland would cause her psychological
harm. In my view, this is an insufficient evidential basis to establish
irreparable harm. First, the report was based largely on what Jadwiga told the
psychologist about her experiences; however, the Board has found her evidence
of spousal abuse to be non-credible, a decision which the PRRA officer held was
not overcome by new evidence. Second, Jadwiga and the psychologist had only one
meeting and there was no evidence of any follow-up treatment. Third, the report
was prepared in 2006 to assist Jadwiga in her efforts to remain in Canada on H&C grounds and is thus,
to an extent, self-serving. Fourth, stress and depression caused by the
prospect of removal from Canada are of little relevance in
this context since they are inherent in the enforcement of the Act.
(c) appeal will be nugatory
[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 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.
(iii) Balance of convenience
[21]
In my
view, the balance of convenience does not favour a stay. True, the Palkas have
been in Canada for more than nine years, and
appear to have been successful in establishing themselves and to have led
blameless lives. Given the length of time that they have been here, the
presence of family members in Canada, the health of Jadwiga’s
father, and the enhanced life opportunities available to them, it is very
understandable that they wish to remain.
[22]
However,
that is not the test on a motion for a stay of removal. Despite numerous
attempts, through administrative and legal channels, they have been denied
status in Canada. There has to be some
finality. To grant yet another deferral of their removal is contrary to the
public interest as expressed in the Act. The appellants have not persuaded me
that their interest in remaining outweighs the public interest in the due enforcement
of the law. I decline to defer their removal yet again.
[23]
For these
reasons, the motion will be dismissed.
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