Docket: IMM-971-18
Citation: 2018 FC 300
[ENGLISH TRANSLATION]
Ottawa, Ontario, March 15, 2018
PRESENT: The Honourable Mr. Justice Roy
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BETWEEN:
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GARDY NOEL
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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and
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THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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| Respondents
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ORDER AND REASONS
[1]
In this case, Gardy Noel seeks to stay his removal that was ordered for March 21, 2018. On the face of the record, it is not clear what power the Court has to order the stay given the procedural path taken by the applicant.
[2]
In fact, the application for judicial review underlying the stay application relates to the negative result obtained by Mr. Noel in the pre-removal risk assessment [PRRA]. This decision was dated November 29, 2017, and was the subject of an application for judicial review that is still pending. Mr. Noel requested a so-called “administrative”
stay of the removal order on March 9, 2018. That application for an administrative stay was refused on March 12, 2018. This refusal of an administrative stay was not the subject of an application for judicial review. Rather, the applicant appears to be requesting a judicial stay of the removal order on the sole basis that there is an application for judicial review of the negative PRRA decision made in November 2017.
[3]
The Immigration and Refugee Protection Regulations (SOR/2002-227) [Regulations] specifically set out cases where a stay can be granted in the context of a PRRA application. Section 232 of the Regulations could have applied in this case. I reproduce it:
| Stay of removal — pre-removal risk assessment
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Sursis : examen des risques avant renvoi
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| 232 A removal order is stayed when a person is notified by the Department under subsection 160(3) that they may make an application under subsection 112(1) of the Act, and the stay is effective until the earliest of the following events occurs:
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232 Il est sursis à la mesure de renvoi dès le moment où le ministère avise l’intéressé aux termes du paragraphe 160(3) qu’il peut faire une demande de protection au titre du paragraphe 112(1) de la Loi. Le sursis s’applique jusqu’au premier en date des événements suivants :
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| (a) the Department receives confirmation in writing from the person that they do not intend to make an application;
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a) le ministère reçoit de l’intéressé confirmation écrite qu’il n’a pas l’intention de se prévaloir de son droit;
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| (b) the person does not make an application within the period provided under section 162;
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b) le délai prévu à l’article 162 expire sans que l’intéressé fasse la demande qui y est prévue;
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| (c) the application for protection is rejected;
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c) la demande de protection est rejetée;
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| (d) [Repealed, SOR/2012-154, s. 12]
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d) [Abrogé, DORS/2012-154, art. 12]
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| (e) if a decision to allow the application for protection is made under paragraph 114(1)(a) of the Act, the decision with respect to the person’s application to remain in Canada as a permanent resident is made; and
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e) s’agissant d’une personne à qui l’asile a été conféré aux termes du paragraphe 114(1) de la Loi, la décision quant à sa demande de séjour au Canada à titre de résident permanent;
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| (f) in the case of a person to whom subsection 112(3) of the Act applies, the stay is cancelled under subsection 114(2) of the Act.
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f) s’agissant d’une personne visée au paragraphe 112(3) de la Loi, la révocation du sursis prévue au paragraphe 114(2) de la Loi.
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Clearly, the stay set out in section 232 can no longer be applied since the application for protection has been rejected. Now, there is only an application for leave and for judicial review of the PRRA application that does not benefit from the statutory stay that applies to other applications for judicial review (for example, section 231 of the Regulations).
[4]
The difficulty that arises is that the legislation appears to set out the parameters for a stay of the removal order in the pre-removal risk assessment. Moreover, the applicant tried to obtain an administrative stay for that removal order. The Immigration and Refugee Protection Act (S.C. 2001, c. 27) [the Act] itself prescribes the stay of the removal order. Section 50 of the Act applies here and it reads as follows:
| Stay
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Sursis
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| 50 A removal order is stayed
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50 Il y a sursis de la mesure de renvoi dans les cas suivants :
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| (a) if a decision that was made in a judicial proceeding — at which the Minister shall be given the opportunity to make submissions — would be directly contravened by the enforcement of the removal order;
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a) une décision judiciaire a pour effet direct d’en empêcher l’exécution, le ministre ayant toutefois le droit de présenter ses observations à l’instance;
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| (b) in the case of a foreign national sentenced to a term of imprisonment in Canada, until the sentence is completed;
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b) tant que n’est pas purgée la peine d’emprisonnement infligée au Canada à l’étranger;
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| (c) for the duration of a stay imposed by the Immigration Appeal Division or any other court of competent jurisdiction;
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c) pour la durée prévue par la Section d’appel de l’immigration ou toute autre juridiction compétente;
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| (d) for the duration of a stay under paragraph 114(1)(b); and
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d) pour la durée du sursis découlant du paragraphe 114(1);
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| (e) for the duration of a stay imposed by the Minister.
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e) pour la durée prévue par le ministre.
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We can therefore ask whether the appropriate path that would give jurisdiction to this Court to hear a stay application should not be an administrative stay pursuant to paragraph 50(e) of the Act that, when refused, could be the subject of an application for judicial review pursuant to section 72 of the Act. This application for judicial review itself permits the intervention of this Court to order the stay if it meets three (3) well-known conditions. It is appealing to follow this procedure based on the fact that the stay, as submitted by the applicant, cannot be the stay of an order by the PRRA officer; in fact, the PRRA officer does not order anything: he only decides that the Minister’s protection is not required for the risks raised. It follows from this decision that the removal order becomes enforceable given that the stay expires. Strictly speaking, the removal is not before the Federal Court since the only question is rather the appropriateness of the PRRA decision that does not deal with the removal. Moreover, the applicant chose to request an administrative stay apparently pursuant to section 50 of the Act. If this decision is not challenged by judicial review, how can we validly consider the issue of the stay?
[5]
The applicant was unable to enlighten the Court on the path chosen. Indeed, the parties did not do the necessary preparation to argue the issue. Nevertheless, I chose to consider the stay application as though it could be properly made before the Court. If it is possible to dispose of the stay application on a basis other than the jurisdictional issue, that would then be the preferable path to follow. Therefore, I considered the three (3) criteria of the test that must be satisfied in this case. The applicant must therefore satisfy the Court for each element of the test, as these elements are independent of one other and each requires a demonstration:
Is there a serious issue to be tried in the underlying application for judicial review?
Will there be irreparable harm if the stay application is not granted?
Does the balance of convenience favour the applicant?
(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))
If the applicant fails on one of any of these elements, the stay is rejected.
[6]
Here, the facts of the case as presented are simple. The applicant left his country of nationality, Haiti, in November 2012. He allegedly crossed the border between Haiti and the Dominican Republic and then travelled to Brazil. From there, he claims to have travelled through a series of South American countries, in Central America and in Mexico, to find himself in the United States. Very little information was provided by the applicant on the subject of this journey. In any event, this applicant made a first attempt to enter Canada in March 2017, in Fort-Erie. The record does not reveal how the applicant chose to make this attempt in Southeastern Ontario, at the border between Buffalo and Canada. He was removed to the United States pursuant to paragraph 101(1)(e) of the Act. He was then subject to an exclusion order in Canada for one year.
[7]
The respondent submitted to the Court the result of a questionnaire that the applicant took when he attempted to enter Canada in March 2017. To say the very least, answers to simple questions were not as truthful as hoped. As such, when the respondent was asked whether he was ever ordered to leave any country, he answered no. However, he was subject to a deportation order to the United States. He states that he was never in detention even though he had been detained in the United States and in Mexico in the summer of 2016. He denied using aliases even though his fingerprints reveal two other names.
[8]
According to the questionnaire, there is no question of threats to his life if he were to return to his country of nationality. He claims rather to be persecuted for his political opinion. When he was asked why he was seeking refugee status in Canada, he answered [translation] “because I was persecuted in Haiti. I know that Canada is a social country. I need a doctor”
. He later adds that [translation] “I am here to be supported by the Government of Canada”
. I did not find any trace of the version that he offered in the PRRA application. A little more than three (3) months later, on June 3, 2017, the applicant was intercepted, this time in Quebec after an unlawful entry.
[9]
The PRRA application followed and was filed on June 29, 2017, and was the subject of a decision in November 2017.
[10]
Essentially, the applicant stated that he would be in danger if he were removed to Haiti because he would suffer [translation] “complex persecution”
. That complex persecution is not easy to decipher. The applicant alleges that he was a member of a section of the KOPAD, an organisation that [translation] “endeavoured to teach peasants in the area to read and write and to explain to them their rights and duties in society”
(the applicant’s affidavit dated March 12, 2018, also included in the narrative offered in the PRRA application, on July 18, 2017). The fear of a complex persecution appears to be based on, according to the applicant, his involvement in KOPAD (Komite, Organizasyon Peysan Afiliye Delbois). All that is disclosed is that the applicant had been informed by the members of the organization that he was being sought. No details are provided on the nature of the information, the perpetrator, or the circumstances in which the information was allegedly received.
[11]
The PRRA decision dated November 29, 2017, when read in the context of the facts disclosed, found that the PRRA application must be rejected because the applicant did not discharge his burden. Essentially, I draw from this that the PRRA officer considered that the facts disclosed were very thin and that the documentary evidence submitted, dealing with the situation of Haitians in the Dominican Republic and in Brazil, did not bring grist to the mill. As noted, there are no details in the record; a vague allegation was made even though the questionnaire, three months earlier, was silent on this point. Only persecution for political opinion and the desire to profit from the Canadian social net are mentioned. That is the evidence submitted.
[12]
The applicant submits, as a serious issue to be raised on judicial review, that the PRRA officer did not sufficiently consider the allegations of persecution in Haiti and that, ultimately, the PRRA officer’s reasons did not explain why he did not give any weight to the applicant’s only statement. I am not persuaded that this is a serious issue within the meaning of Wang v Canada (Minister of Citizenship and Immigration), [2001] 3 FCR 682. In fact, when the remedy sought on a stay application is the same as the remedy sought on the application for judicial review, i.e. to remain in Canada, the judge is invited to closely review the merits of the underlying application. It would be incongruous to consider similar issues on such different bases.
[13]
In this case, a review of this serious issue results in a finding that the applicant would face the decision of the Supreme Court of Canada in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62; [2011] 3 S.C.R. 708, where the Supreme Court states at paragraph 16 that “if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.”
This is not possible based on one allegation, without details, that there is a personal risk. The applicant had this burden. The decision-maker clearly indicated that there was no personal risk in this case, therefore leading to the conclusion that the documentary evidence offered on the Dominican Republic and Brazil was of no assistance. While the allegation is very weak, the PRRA officer’s reasons could certainly have been more explicit and better articulated. But considering the record as a whole, ultimately, I am accordingly not persuaded that there is a “serious issue”
for the Court to decide on judicial review. But it is not necessary to make a finding on that basis since the test for irreparable harm is not met in any way.
[14]
Therefore, it seems to me that this case completely fails to demonstrate the irreparable harm that the applicant claims he would suffer if he were to be removed to his native country. Essentially, this applicant claims to be in danger without submitting any evidence that goes beyond a general allegation.
[15]
As the Federal Court of Appeal has stated on many occasions, much more is necessary to satisfy the test for irreparable harm. I refer to paragraphs 14 to 16 of Gateway City Church v Canada (National Revenue), 2013 FCA 126 which, it seems to me, we must use to assess irreparable harm:
[14] Such a general assertion is insufficient to establish irreparable harm: Holy Alpha and Omega Church of Toronto v. Canada (Attorney General), 2009 FCA 265 at paragraph 22. That sort of general assertion can be made in every case. Accepting it as sufficient evidence of irreparable harm would unduly undercut the power Parliament has given to the Minister to protect the public interest in appropriate circumstances by publishing her notice and revoking a registration even before the determination of the objection and later appeal.
[15] General assertions cannot establish irreparable harm. They essentially prove nothing:
It is all too easy for those seeking a stay in a case like this to enumerate problems, call them serious, and then, when describing the harm that might result, to use broad, expressive terms that essentially just assert – not demonstrate to the Court’s satisfaction – that the harm is irreparable.
(Stoney First Nation v. Shotclose, 2011 FCA 232 at paragraph 48.) Accordingly, “[a]ssumptions, speculations, hypotheticals and arguable assertions, unsupported by evidence, carry no weight”: Glooscap Heritage Society v. Minister of National Revenue, 2012 FCA 255 at paragraph 31.
[16] Instead, “there must be evidence at a convincing level of particularity that demonstrates a real probability that unavoidable irreparable harm will result unless a stay is granted”: Glooscap, supra at paragraph 31. See also Dywidag Systems International, Canada, Ltd. v. Garford Pty Ltd., 2010 FCA 232 at paragraph 14; Canada (Attorney General) v. Canada (Information Commissioner), 2001 FCA 25, 268 N.R. 328 at paragraph 12; Laperrière v. D. & A. MacLeod Company Ltd., 2010 FCA 84 at paragraph 17.
[Emphasis added]
(see also Janssen Inc. v Abbvie Corporation, 2014 FCA 176)
[16]
It follows that the stay application cannot be granted because irreparable harm was not established. I would add that the balance of convenience favours the government in this case since this applicant has no status in Canada, having made two attempts in barely three months to enter the country, first at the port of entry and then later, several hundred kilometres away, illegally. He was not in any way able to provide probative information about his situation, such that the public interest in the enforcement of the Act must prevail. I note that section 48 of the Act expressly provides that the removal order is enforceable and that foreign national must leave Canada immediately and the order must be enforced as soon as possible. The government is bound to respect the statute adopted by Parliament and the public interest is not negligible.
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