Federal Court Decisions

Date: 20020130

Docket: IMM-27-02

Neutral citation: 2002 FCT 113

BETWEEN:

                                    KATHLEEN WRIGHT

                                                                                                     Applicant

                                                    - and -

   THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                 Respondent

                                  REASONS FOR ORDER

DAWSON J.

[1]    On January 9, 2002, I heard a motion brought to stay Ms. Wright's removal to Jamaica scheduled to take place on January 10, 2002. These are my reasons for dismissing on January 9, 2002 the motion for a stay and for declining to certify any question.

FACTS

[2]    Ms. Wright came to Canada with her husband, Gilmore, in October of 1993. All of her husband's family were then in Canada. Ms. Wright arrived with a visitor status which expired on April 30, 1994. After that date, Ms. Wright continued to stay in Canada without status.

[3]    On August 23, 1994, a departure order was issued which required Ms. Wright to leave Canada by September 22, 1994. As Ms. Wright did not leave Canada by that date the departure order became a deemed deportation order.

[4]    In 1997 steps were taken to remove Ms. Wright from Canada, but those efforts were deferred for a period of six months so as to allow the outcome of a pending application for landing of Ms. Wright and her husband on humanitarian and compassionate ("H & C") grounds. The H & C application was unsuccessful, and in January, 1998 this Court refused to grant leave to commence an application for judicial review of that decision.

[5]                 A direction to report for removal was then issued to Ms. Wright. That direction in error referred to two different removal dates, but a note on the copy of the direction to report contained in Ms. Wright's immigration file states that after the direction was issued the expulsion officer spoke with Ms. Wright's lawyer to confirm that the correct removal date was March 9, 1998. That Ms. Wright knew the correct date is confirmed by the letter her immigration consultant wrote to Immigration Canada on March 5, 1998 requesting deferral of the scheduled removal of Ms. Wright. That letter referred to the "direction to report to leave Canada on March 09, 1998" that Ms. Wright had received.

[6]                 No deferral was granted in response to the consultant's request. Ms. Wright did not report for removal as scheduled on March 9, 1998. On March 28, 1998, a warrant for Ms. Wright's arrest was issued as a result of her failure to report for removal.

[7]                 Ms. Wright was arrested on November 29, 2001. At that time she and her husband had a second outstanding H & C application pending (apparently received in Vegreville in or about November, 2000), and her husband Gilmore had been removed to Jamaica in May of 2001.

[8]                 The present motion for a stay of removal was brought in connection with an application for leave and for judicial review of the decision of the expulsion officer of January 3, 2002 not to defer Ms. Wright's removal.

[9]                 The test for the granting of a stay of removal is well-known. The three elements of the test established in Toth v. Canada, (1988), 86 N.R. 302 (F.C.A.) are that there must be a serious issue to be tried in the underlying application, it must be shown that the applicant will suffer irreparable harm if the stay is not granted and the balance of convenience must favour the applicant for the stay.

[10]            Despite the able submissions of counsel for Ms. Wright I was not satisfied that Ms. Wright's motion raised a serious issue to be tried, or that irreparable harm would occur if the stay was not granted.

SERIOUS ISSUE

[11]            The serious issues asserted were that:

1.    The expulsion officer did not refer the file to another officer despite an alleged apprehension of bias.

2.    The officer's decision to deny the request was unreasonable, and the refusal letter contained no reasons.

[12]            The apprehension of bias was said to arise out of the fact that on two earlier occasions the officer declined to defer Gilmore Wright's removal. This argument was not pursued in oral argument.

[13]            Given the limited discretion of a removal officer, and the fact that on the last occasion this Court refused to interfere with the expulsion officer's decision and stay Gilmore Wright's removal, I am not satisfied that a serious issue is raised as to whether an informed person viewing the matter realistically and practically, and having thought the matter through, would conclude that it is more likely than not that the expulsion officer would not decide the question fairly.

[14]            As to the reasonableness of the decision not to defer removal, this Court in Wang v. Canada (Minister of Citizenship and Immigration), [2001] 3 F.C. 682 (T. D.) stated at paragraph 45:

[45]          The order whose deferral is in issue is a mandatory order which the Minister is bound by law to execute. The exercise of deferral requires justification for failing to obey a positive obligation imposed by statute. That justification must be found in the statute or in some other legal obligation imposed on the Minister which is of sufficient importance to relieve the Minister from compliance with section 48 of the Act. In considering the duty imposed and duty to comply with section 48, the availability of an alternate remedy, such as a right of return, should weigh heavily in the balance against deferral since it points to a means by which the applicant can be made whole without the necessity of non-compliance with a statutory obligation. For that reason, I would be inclined to the view that, absent special considerations, an H & C application which is not based upon a threat to personal safety would not justify deferral because there is a remedy other than failing to comply with a positive statutory obligation. [underlining added]

[15]            While the fact of a long-standing H & C application may be considered by an expulsion officer (see for example, Simoes v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 936 (F.C.T.D.) at paragraph 12) it has recently been held that the Immigration Act, R.S.C. 1985, c. I-2 ("Act") does not give a removal or expulsion officer the discretion to consider various H & C factors in determining whether to defer removal, and that there is no general discretion by which an expulsion officer may stay deportation pending the determination of an H & C application. See: Benitez v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1307; [2001] F.C J. 1802, particularly at paragraphs 15 and 19.

[16]            In view of that jurisprudence, and having carefully reviewed counsel's submissions to the expulsion officer with respect to deferral, I do not find a serious issue is raised as to the reasonableness of the decision not to defer removal.

[17]            As for the absence of reasons in the refusal letter, the letter stated that:

Citizenship & Immigration Canada (CIC) has an obligation under Sec. 48 of the Immigration Act to carry out removal orders as soon as reasonably practicable. Having considered your request, I do not feel that a deferral of the execution of the removal order is appropriate in the circumstances of this case.

[18]            Better practice would be for an expulsion officer to give some brief explanation for the decision. However, on the facts of this case, I am not prepared to say that a serious issue arises out of the failure of the refusal letter to contain more detailed reasons.

[19]            I so conclude because while an expulsion officer is bound to act fairly, the concept of procedural fairness is variable. Thus in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paragraph 44, the Supreme Court of Canada accepted that with respect to an H & C application the notes of the immigration officer should be taken to be the reasons. Writing for the majority, Justice L'Heureux-Dubé stated:

Accepting documents such as these notes as sufficient reasons is part of the flexibility that is necessary... when courts evaluate the requirements of the duty of fairness with recognition of the day-to-day realities of administrative agencies and the many ways in which the values underlying the principles of procedural fairness can be assured. It upholds the principle that individuals are entitled to fair procedures and open decision-making, but recognizes that in the administrative context, this transparency may take place in various ways.

[20]            The expulsion officer gave detailed reasons in her affidavit as to the basis for her decision. While I am mindful of Ms. Wright's counsel's remarks as to the timing of that evidence, the check on the potential for the expulsion officer's affidavit evidence to be self-serving is found in the obligation to disclose the tribunal record in the underlying application for judicial review.

IRREPARABLE HARM

[21]            Even if I had concluded that there was a serious issue to be tried, for the following reasons I am not persuaded on the evidence before me that irreparable harm will occur to Ms. Wright if the stay of removal is not granted.

[22]            Notwithstanding her removal, the Minister will remain obliged to consider properly and fairly the outstanding H & C application. Chapter 5 of the Inland Processing Manual confirms that H & C applications are considered after removal (section 3.2) and that applicants receiving a positive H & C decision after removal and not otherwise inadmissible will be allowed to return to Canada (section 9.10).

[23]            As noted in Wang, supra, and I agree, the availability of a right of return weighs heavily in the balance against deferral.

[24]            As well, irreparable harm in the present case must be harm which will occur between now and when the H & C application will be determined. As to the nature of such harm, inherent in deportation is forced separation and heartbreak (see: Melo v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. 403 (F.C.T.D.). Irreparable harm must encompass prejudice beyond that which is inherent in deportation itself.

[25]            Ms. Wright adduced no evidence of hardship upon her in the time it will take to process the outstanding H & C application other than what is reasonably incidental to deportation.

[26]            To the extent it was said that hardship would befall Gilmore Wright's adult relatives in Canada who have come to rely upon Ms. Wright, that reliance formed while Ms. Wright remained without status in Canada. Absent extraordinary circumstances not present here, to give effect to this argument and to allow circumstances created as a result of an illegal overstay to constitute irreparable harm would be to confer a benefit on Ms. Wright arising from her illegal stay in Canada. That cannot be the intent of the Act or of this Court's jurisdiction to grant a stay. It is to be remembered that a stay is in the nature of equitable relief, and those who seek equity must do equity.

CERTIFICATION OF A QUESTION

[27]            Ms. Wright's counsel argued that the jurisprudence of this Court concerning motions for stay is "undeveloped and varies depending upon the Justice dealing with the matter". He therefore sought certification of the following questions:

1.              Should the extant jurisprudence of the Federal Court of Appeal wherein it is established that no appeal to that Court exist [sic] from a decision in a Motion for a stay of a Removal order be revisited in light of such cases as Panchoo, Ziyadeh, [sic] Skalarzyk, and Tobiass?

2.              If indeed, the jurisprudence is outdated, should there be an appeal right from a Motion for a stay in an immigration matter?

[28]            The present motion for a stay is incidental to the pending application for leave. In my view it is settled law that where a stay is sought pending disposition of an application for leave, by virtue of section 82.2 of the Act there is no right of appeal from any proceeding incidental to an application for leave, including a motion for a stay. See: Ge v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1663 (F.C.A.); Fadeev v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1756 (F.C.T.D.); Sereno v. Canada (Solicitor General) (1993), 75 F.T.R. 71 (F.C.T.D.).

[29]            Counsel for Ms. Wright relied upon the fact that in Ziyadah v. Canada (Minister of Citizenship and Immigration), [1999] 4 F.C. 152 (T.D.) questions were certified. However, in so certifying the questions Justice Pelletier acknowledged uncertainty as to the right of appeal. In any event there is no indication in Justice Pelletier's reasons that the Court's attention was drawn to the decision of the Court of Appeal in Ge, supra. I do not take from the fact that the Court of Appeal ([2000] F.C.J. No. 1073) dismissed the resultant appeal orally on the ground of mootness without further comment, that the Court of Appeal intended to reverse its prior decision in Ge.

[30]            Reliance was also placed by Ms. Wright upon obiter comments of Pitt J. in Sklarzyk v. Canada (Minister of Citizenship and Immigration), [2001] O.J. No. 1842 (Ont. S.C.) and of Robertson J.A. in Panchoo v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 18 (C.A.).

[31]            In Panchoo, Justice Robertson expressed doubt that sections 82 and 83 of the Act precluded any appeal of the decision to refuse to grant a stay. Justice Robertson observed that it was arguable that a stay was not a "matter arising" under the Act. However, those obiter remarks are not sufficient, in my view, to overrule the decision in Ge which is binding upon me.

[32]            Moreover, subsequently in Geza v. Canada (Minister of Citizenship and Immigration), (2001), 266 N.R. 158 (F.C.A.) an application to convert an application for judicial review into an action was held by the Court of Appeal to be a decision made under the Act. Therefore the Court found that the trial judge had erred in characterizing the application to be made within the context of the Federal Court Act.

[33]            By analogy, if section 83 of the Act applied to the exercise of discretion whether to convert an application to an action, I must conclude that it also applies to the exercise of discretion to refuse a stay.

[34]            Finally, to the extent that the applicant relied upon Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, there at issue was a stay of proceeding pursuant to section 50 of the Federal Court Act. I accept and agree with the submission advanced on behalf of the Minister that the stay of proceedings considered by the Court in Tobiass was wholly unrelated to any provision of the Citizenship Act. This decision is therefore distinguishable.

[35]            For these reasons, the motion for a stay was dismissed and no question was certified.

"Eleanor R. Dawson"

                                                                                                           Judge                        

Ottawa, Ontario

January 30, 2002