Toronto, Ontario, April 16, 2007
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Applicant’s Application for Judicial Review identifies the underlying application of this motion as “a decision of Enforcement Officer, denying the Applicant’s request to defer her removal. The decision was made on Wednesday, March 14th, 2007 and received by the Applicant that on that day.” There is no record of the Applicant making a deferral request. (Affidavit of Lulu Wong, Respondent’s Motion Record; Application for Judicial Review, Applicant’s Motion Record, Tab 1.)
[2] The Applicant’s Notice of Motion states “The Applicant is requesting that the Court set aside the Removal Order made by the Officer of the Immigration and Refugee Board, Immigration Division, dated March 14, 2007.” The Applicant’s affidavit too identifies the Removal Order as the basis of her Judicial Review application. (Notice of Motion, Applicant’s Motion Record, Tab 2 at paragraph 3; Affidavit of Pheona Alicia Daniel, Applicant’s Motion Record, Tab 3 at paragraph 2.)
[3] Finally, in the Applicant’s written representations, she states “This is Memorandum filed on behalf of the Applicant Pheona Alicia Daniel in respect of an Application for leave to commence Judicial Review of the Pre-Removal Assessment of Officer Minley Lloyd, pursuant to s. 82.1 of the Immigration Act.” (Applicant’s Written Representations, Applicant’s Motion Record, Tab 14, paragraph 1.)
[4] While it is unclear what decision the Applicant is actually challenging the Respondent proposes to deal with all three possibilities.
ISSUE
[5] Whether the Applicant meets the tri-partite test for granting a stay of removal from Canada.
ANALYSIS
[6] The test for determining whether interlocutory injunctions should be granted pending a determination of a case on its merits is whether a) there is a serious question to be tried; b) whether the litigant who seeks the interlocutory injunction would, unless the injunction is granted, suffer irreparable harm; and c) on the balance of convenience, which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction pending a decision on the merits. (Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.), [1988] F.C.J. No. 587 (QL); R.J.R.-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311.)
[7] The requirements of the tri-partite test are conjunctive. That is, the Applicant must satisfy all three branches of the test before this Court can grant a stay. (Toth, above.)
[8] A stay is an extraordinary remedy. The Applicant must demonstrate special and compelling circumstances that would warrant “exceptional judicial intervention.” (Tavaga v. Canada (Minister of Employment and Immigration) (1991), 15 Imm. L.R. (2d) 82 (F.C.T.D.), [199] F.C.J. No. 614 (QL); Shchelkanov v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 496 (T.D.).)
SERIOUS ISSUE
[9] To establish the existence of a serious issue, the applicant must satisfy the Court that the underlying application is not frivolous or vexatious. (Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110; Toth, above; R.J.R.-MacDonald, above, at para. 44.)
[10] If the underlying application concerns a refusal to defer removal, the Applicant has not provided any evidence in her affidavit or elsewhere to show that she ever requested a deferral. Absent evidence of an explicit request for deferral there can be no challenge to an officer’s decision not to defer. As such, there can be no serious issue arising from a deferral request that did not occur. (Affidavit of Lulu Wong, Respondent’s Motion Record; Awolor v. Canada (Minister of Citizenship and Immigration), (17 April 2003), Doc. No. IMM-870-03 (F.C.T.D.); Park v. Canada (Minister of Citizenship and Immigration), (31 March 2003), Doc No. IMM-2022-03 (F.C.T.D.); Batuev v. Canada (Minister of Citizenship and Immigration), (31 March 2003) Doc. No. IMM-1888-03 (F.C.T.D.); Singh v. Canada (Solicitor General), 2004 FC 405 (T.D.), [2004] F.C.J. No. 481 (QL).)
[11] If the underlying application concerns the Removal Order made by the Officer on March 14, 2007, the Applicant is actually challenging the Direction to Report, as that is the only document in the Applicant’s Motion Record dated March 14, 2007 with the Officer’s name. (Direction to Report, Applicant’s Motion Record, Tab 4.)
[12] This Court has confirmed that a Direction is nothing more than informational communication, the sole purpose of which is to explain when and where the removal order against an Applicant is to be executed. The issuance of a Direction to Report, in and of itself, does not constitute a “decision”. The jurisprudence states that the Direction is not a decision or order falling within the ambit of subsection 18.1(2) of the Federal Courts Act, R.S., 1985, c. F-7, and cannot be the subject of a judicial review application. This Court has held that where the underlying application for judicial review challenges a Direction to Report, the stay can be dismissed on this preliminary basis. Since the Direction to Report is not a reviewable decision, there is no valid underlying application to support the stay motion. (Tran v. Canada (Minister of Citizenship and Immigration), 2005 FC 394, [2005] F.C.J. No. 492, at para 2; Jarada v. Canada (Minister of Public Safety and Emergency Preparedness), 2006 CF 14, [2006] F.C.J. No. 7 (QL.)
[13] If the underlying application concerns the PRRA decision, the Applicant has not raised a serious issue as regards that decision.
[14] The standard of review of the merits of a PRRA officer’s decision is patent unreasonableness. Where there is nothing perverse or patently unreasonable in the PRRA decision there is no serious issue warranting a stay of removal. (Sokhan v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 958, para. 14 (T.D.); Maximenko v. Canada (Minister of Citizenship and Immigration), 2002 FCT 686, [2002] F.C.J. No. 183, para. 14 (T.D.) (QL); Ahmed v. Canada (Solicitor General), 2004 FC 686, [2004] F.C.J. No. 845, para. 5 (T.D.).)
[15] As stated by the PRRA Officer, the PRRA is not an appeal of a negative refugee decision, or a review of a previous decision of the RPD, but rather an assessment based on new facts or evidence which demonstrates that the Applicant is now at risk. The risk identified by the Applicant in her PRRA application was the same as was presented at her refugee hearing. The Applicant did not present any evidence to show that there has been a change in conditions since her refugee hearing in either Guyana or St. Vincent and the Grenadines that would put her at risk. (PRRA Decision, Applicant’s Motion Record, Tab 6.)
[16] This Court has consistently held that unless the PRRA Officer has failed to consider relevant factors or has relied upon irrelevant ones, the weighing of the evidence lies within the purview of the officer conducting the assessment and does not normally give rise to judicial review. (Augusto v. Canada (Solicitor General), 2005 FC 673, [2005] F.C.J. No. 850, at para. 9 (T.D.); Khaliq v. Canada (Solicitor General), 2004 FC 1561, [2004] F.C.J. No. 1889, at para. 7 (T.D.); M.L. v. Canada (Solicitor General), 2004 FC 1646, [2004] F.C.J. No. 2003 at para. 20 (T.D.); Manvalpillai v. Canada (Minister of Citizenship and Immigration), 2005 FC 584, [2005] F.C.J. No. 780 (T.D.) (QL).)
[17] It is not the role of the Court to reweigh the evidence that was before the PRRA Officer. The Officer’s decision was reasonably open to her on the record and she did not ignore or decline to assess the evidence. (Mekolli v. Canada (Minister of Citizenship and Immigration), (9 September 2003), Doc. No. IMM-4974-03 (F.C.T.D.); Padda v. (Minister of Citizenship and Immigration), 2003 FC 1081; [2003] F.C.J. No. 1353, para. 12.)
[18] The Applicant has failed to demonstrate in her materials that the Officer refused to consider any evidence, misconstrued any evidence, or that she ignored evidence. The Applicant has made a blanket statement that the PRRA Officer did not take into account all of the documentary evidence but has failed to identify which documents were not considered. The position of the Applicant amounts to a disagreement with the manner in which the Officer weighed the evidence. As such, it does not afford a legal basis for this Court to intervene. (Applicant’s Written Representations, Applicant’s Motion Record, Tab 14, para. 11; Karaguduk v. Canada (Solicitor General), 2004 FC 958, [2004] F.C.J. No. 1176 (T.D.) (QL); Sidhu v. Canada (Minister of Citizenship and Immigration), 2004 FC 39, [2004] F.C.J. No. 30 (T.D.) (QL)
[19] As regards the Applicant’s argument that the PRRA Officer fettered her discretion by adherence to s. 113(a) of the IRPA, the Respondent respectfully submits that such an argument is without merit. (Applicant’s Written Representations, Applicant’s Motion Record, Tab 14, para. 18.)
[20] The Applicant does not specifically state how the PRRA Officer fettered her discretion by adhering to s. 113(a) of the IRPA. A PRRA applicant whose claim to refugee protection has been rejected may only present 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 rejection. There are no exceptions in the IRPA to this rule. The Applicant has not presented any authority for a proposition that a PRRA Officer fetters her discretion by not adhering to this rule.
[21] Finally, as regards the Applicant’s argument that her rights under s. 7 of the Canadian Charter of Rights and Freedoms, Schedule B, Part I to the Canada Act 1982 (U.K.) 1982 c. 11 (Charter), would be infringed should she be removed from Canada, an allegation that deportation will abrogate the Applicant’s s. 7 Charter rights does not raise a serious issue warranting a stay of deportation. The Charter does not grant the Applicant an absolute right to remain in Canada. (Canada v. Chiarelli (Minister of Employment and Immigration), [1992] 1 S.C.R. 711, paras 24 and 25; Grant v. Canada (Minister of Citizenship and Immigration), 2002 FCT 141, [2002] F.C.J. No. 191.)
IRREPARABLE HARM
[22] The purpose of an interlocutory injunction is to preserve the status quo between the parties and not among third parties. In R.J.R.-MacDonald, above, at para. 58, the Supreme Court of Canada noted that at this stage, the only issue to be decided is whether a refusal to grant relief could so adversely affect an applicant’s own interests.
[23] Irreparable harm is more than mere hardship. This is undisputed. The Federal Court and Court of Appeal’s jurisprudence establishes that irreparable harm must be something more than harm due to the inherent consequences of deportation. (Melo v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 403, at paras. 20-21 (T.D.) (QL).)
[24] Moreover, the evidence concerning any alleged irreparable harm must not only be credible and convincing, but it must also not be speculative. There must be a high degree of probability that the harm will in fact occur. (Operation Dismantle Inc. v. Canada, [1985] 1 S.C.R. 441, at 458; Xu v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1634 (T.D.); Syntex Inc. v. Novopharm Ltd. (1991), 36 C.P.R. (3d) 129 at 135 (F.C.A.); Grant, above, at para. 9.)
[25] This Court has repeatedly held that separation from a spouse is not a sufficient basis upon which to find that the Applicant will suffer irreparable harm if removed. (Sahota v. Canada (Minister of Citizenship and Immigration), 2002 FCT 331, [2002] F.C.J. No. 417 (T.D.) (QL); Saibu v. Canada (Minister of Citizenship and Immigration), 2002 FCT 103, [2002] F.C.J. No. 151 (T.D.) (QL).)
[26] It is well established that in and of itself an outstanding H&C application is not a bar to the removal of a person who is subject to a valid departure order. In Cuff v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1865 (T.D.) (QL), Justice J. François Lemieux stated:
[11] It has been consistently held by judges of this Court that in and of itself, without more, an outstanding application for exemption, based on humanitarian and compassionate grounds (H & C), from the requirement that an application for permanent residence be processed outside of Canada, is not grounds for granting a stay. There is no obligation on the respondent to consider an H & C Application before effecting removal. Some of these authorities to this effect are: Younge v. M.C.I., [1997] F.C.J. No. 4, IMM-2566-96, January 3, 1997, Richard J., as he then was,; Balasumbramaniam v. M.C.I., [1998] F.C.J. No. 1118, IMM-3858-98, August 4th, 1998, Richard A.C.J., as he then was; Ram v. M.C.I., [1996] F.C.J. No. 883, IMM-1939-96, June 21, 1996, MacKay J. I should add that judges of this Court have emphasized that notwithstanding removal the processing of an H & C Application continues.
(Reference is also made to: Smith v. Canada (Minister of Citizenship and Immigration), 2001 FCT 388, [2001] F.C.J. No. 632 (T.D.) (QL); Ali v. Canada (Minister of Citizenship and Immigration), 2005 FC 62, [2005] F.C.J. No. 84 (T.D.) (QL).)
[27] In terms of the irreparable harm that may arise from the issues raised in the PRRA application, the risks alleged by the Applicants have been assessed by the PRRA Officer. The Officer thoroughly reviewed the country conditions in Guyana and in St. Vincent and the Grenadines and her conclusion was reasonably open to her. As held recently by Justice Edmond Blanchard: “The alleged risk, already reasonably assessed cannot serve as a basis for an argument supporting irreparable harm in a stay application." (Sesay v. Canada (Minister of Citizenship and Immigration), (19 March 2007), Doc. No. IMM-912-07, IMM-914-07 (F.C.T.D.).)
BALANCE OF CONVENIENCE
[28] If the person seeking a stay order does not establish that he or she will suffer irreparable harm if his or her removal is not stayed, the balance of convenience will favour not staying the removal because staying the removal must be assumed to cause irreparable harm to the public interest. (Hill v. Minister of Fisheries and Oceans (March 17, 2000) Doc. No. T-284-00 (F.C.T.D.); Dugonitsch v. Canada (Minister of Employment Immigration), [1992] F.C.J. No. 320 (T.D.) (QL).)
[29] Furthermore, the balance of convenience does not automatically flow from a finding of serious issue and irreparable harm. The Supreme Court of Canada has stated that each part of the tri-partite test must be established individually. In a recent decision of this Court, Justice Conrad von Finckenstein stated: "without commenting on the sufficiency of the Applicant’s case, this application must be dismissed for failure to meet the balance of convenience...." (Dasilao v. Canada (Solicitor General), 2004 FC 1168, [2004] F.C.J. 1410 (QL), at para. 4.)
[30] In Dugonitsch, above, Justice MacKay set out the considerations pertinent to assessing balance of convenience:
…that public interest supports the maintenance of statutory programs and the efforts of those responsible for carrying them out. Only in exceptional cases will the individual's interest, which on the evidence is likely to suffer irreparable harm, outweigh the public interest… (Emphasis added.)
(Reference is also made to: Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110 at 146.)
[31] The inconvenience which the Applicant may suffer as a result of her removal from Canada does not outweigh the public interest in executing removal orders as soon as reasonably practicable in accordance with subsection 48(2) of the IRPA. The Minister’s obligation under subsection 48(2) of the IRPA is not simply a question of administrative convenience, but implicates the integrity of public confidence in Canada’s system of immigration control.
[32] As held by the Federal Court of Appeal in Selliah v. Canada (Minister of Citizenship and Immigration), 2004 FCA 261, [2004] F.C.J. No. 1200 (QL):
[21] Counsel says that since the appellants have no criminal record, are not security concerns, and are financially established and socially integrated in Canada, the balance of convenience favours maintaining the status quo until their appeal is decided.
[22] I do not agree. They have had three negative administrative decisions, which have all been upheld by the Federal Court. It is nearly four years since they first arrived here. In my view, the balance of convenience does not favour delaying further the discharge of either their duty, as persons subject to an enforceable removal order, to leave Canada immediately, or the Minister's duty to remove them as soon as reasonably practicable: IRPA, subsection 48(2). This is not simply a question of administrative convenience, but implicates the integrity and fairness of, and public confidence in, Canada's system of immigration control.
[33] The Application for Leave to Commence a Judicial Review is not before this Court in this stay motion and therefore cannot be granted at this time. The Applicant has also sought relief under a statute that has been repealed; however, even if the Applicant had sought relief under the IRPA as opposed to the Immigration Act, it is not appropriate for the Court to rule on her Application for Leave to Commence a Judicial Review at this time. (Applicant’s Memorandum, Applicant’s Motion Record, Tab 14, para. 1.)
CONCLUSION
[34] The Applicant’s Motion for a stay of removal should be dismissed.
JUDGMENT
THIS COURT ORDERS that the stay of removal be dismissed.
“Michel M. J. Shore”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1439-07
STYLE OF CAUSE: PHEONA ALICIA DANIEL
v. THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 16, 2007
APPEARANCES:
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Ms. Elsi E. Peters
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Mr. David Knapp
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SOLICITORS OF RECORD:
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ELSI E. PETERS North York, Ontario
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JOHN H. SIMS, Q.C. Deputy Attorney General of Canada
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