Ottawa, Ontario, June 15, 2006
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
and
Docket: IMM-3052-06
HEMRAJ SINGH, SURSATTIE TAJRAM, GAVENDRA SINGH
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
and
Docket: IMM-3077-06
HEMRAJ SINGH, SURSATTIE TAJRAM, GAVENDRA SINGH
Applicants
and
THE MINISTER OF PUBLIC SAFETY
and EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicants are a family from Guyana that came to Canada as visitors in May, 1998 and are subject to removal orders. They have brought motions, dated June 5 and 6, 2006, for a stay of removal, currently scheduled for June 17, 2006, until such time as their underlying applications for leave and for judicial review are considered and finally determined.
[2] Shortly after their arrival here, Mr. Singh and Ms. Tajram discontinued their common-law marriage. Mr. Singh began a relationship with a Canadian citizen and submitted a family class sponsorship application. That application was disallowed on the grounds that the marriage was not genuine. Mr. Singh then made a claim for convention refugee status on behalf of himself and the couple's son Gavendra, now age 11. That claim was refused in February, 2004 and an application for leave and for judicial review was dismissed in June 2004. On May 11, 2005, Mr. Singh submitted an application for landing on humanitarian and compassionate grounds. The risk portion of that H & C application was determined to be negative on March 30, 2006. The rest of the application remains pending.
[3] Ms. Tajram made a convention refugee claim in February, 1999 which was declared abandoned in July, 1999. She failed to appear for an interview on March 10, 2001 and a warrant was issued for her arrest. On March 12, 2001 she submitted an H & C application which was refused in October, 2003. Mr. Singh and Ms. Tajram resumed their relationship and cohabitation in August 2003. They have a second child, Christina, now age two.
[4] A second H & C application was submitted by Ms. Tajram in December, 2003 which was refused on May 29, 2006. That application was never joined with the application submitted on behalf of Mr. Singh and Gavendra in May 2005. The family filed applications for a pre-removal risk assessment in December 2003. A negative PRRA decision, issued in March 2006, was given to the family on May 24, 2006 and they were instructed to report for removal on June 17, 2006. A request for deferral of removal was considered and denied by an expulsion officer on June 7, 2006 and that decision was communicated to the applicants by letter dated June 8, 2006.
[5] Applications for leave and for judicial review have been filed with the Court in relation to Ms. Tajram's unsuccessful H & C application (IMM-3051-06), the PRRA decision (IMM-3052-06) and the refusal of the enforcement officer to defer removal (IMM-3077-06).
[6] In order for the applicants to be successful on these stay motions, they must satisfy the conjunctive tripartite test, set out in Manitoba(Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, 38 D.L.R. (4th) 321 and R.J.R. MacDonald Limited v. Canada (A.G.) [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385 and applied by the Federal Court of Appeal to stays of deportation in Toth v. Canada(Minister of Employment and Immigration) (1988), 86 N.R. 302, 6 Imm. L.R. (2d) 123, namely that there is a serious issue to be tried, that they would suffer irreparable harm if a stay is not granted and that the balance of convenience lies in their favour.
Serious Issue
[7] The applicants have identified a number of issues that are the subject of the underlying applications for leave and for judicial review. With regard to Ms. Tajram's unsuccessful H & C application (IMM-3051-06), it is submitted that the decision is perverse and unreasonable, that the officer ignored evidence and that the officer erred in his assessment of the best interests of the applicant's two children. Concerning the PRRA decision (IMM-3052-06), the applicants submit that the officer erred by requiring incidents of past persecution, ignored evidence in her findings on state protection, failed to address the risk of violent crime to the applicants as returnees from abroad perceived to be wealthy and erred in law by ignoring the risk of intra-communitarian violence posed by the upcoming elections in Guyana. On the refusal to defer removal (IMM-3077-06), the issues raised relate to the officer's failure to issue reasons for her decision, and on the content of the decision as disclosed by her notes to file.
[8] In her written and oral submissions, counsel for the applicants has thoroughly addressed the factual and legal bases for a finding that there are serious issues to be tried with respect to each of the underlying applications for leave and judicial review. Counsel for the respondent has equally thoroughly challenged each contention by the applicants. The threshold for determining serious issue is low. The Court must be satisfied that the case is neither frivolous nor vexatious. A prolonged inquiry into the merits is neither necessary nor desirable: Telecommunications Workers Union v. Canadian Industrial Relations Board and Telus Communications Inc. 2005 F.C.A. 83, [2005] F.C.J. No. 379 (QL).
[9] I am persuaded that the applicants have satisfied the first arm of the Toth test and that my decision must turn on whether irreparable harm has been established and whether the balance of convenience favours the applicants.
Irreparable Harm
[10] The risk of irreparable harm alleged in this motion relates primarily to the effect removal of the family would have upon Ms. Tajram's elderly and disabled father, Mr. Rambharose Tajram. It is also submitted that the children will suffer irreparable harm if they are removed from Canada at this time.
[11] I am satisfied that the evidence and submissions do not establish that Gavendra and Christina will suffer irreparable harm if the applicants are removed. Christina is a Canadian citizen and could remain here if suitable arrangements for her care could be made. That is unlikely, but nothing has been put before me to suggest that she would be at any serious risk of harm if required to accompany her parents and brother, other than those alleged to arise generally from conditions within Guyana, which were the subject of the negative PRRA decision. Gavendra has spent most of his life and has received all of his schooling here in Canada. I have no doubt that he will find it difficult to adjust to a different environment and education system and will miss his grandfather but those are among the unfortunate and inescapable consequences of deportations within families.
[12] The question I have to determine is whether the prospect of irreparable harm to the children's grandfather, Mr. Rambharose Tajram, is sufficient to justify a stay of the applicants' removal.
[13] Mr. Tajram was initially sponsored, along with his wife, to come to Canada by their son, Ms. Tajram's brother. They became citizens in 1993. Mr. Tajram had a stroke in 1997 which has left him partially disabled and he suffers from a variety of other ailments. His wife died in 2001.
[14] The son has sworn a statutory declaration that he has had no contact with his father since 1993 and refuses to support him. There are other siblings living in the United States but no evidence has been submitted as to their willingness or capacity to care for their father. A doctor's letter has been submitted indicating that the father is dependent upon Ms. Tajram for daily care and that her removal would cause his condition to deteriorate significantly, would reduce his quality of life and cause him to be a burden upon public services. A friend of the family provides assistance when Ms. Tajram is at work.
[15] The applicants refer to a line of cases in which the courts have found irreparable harm to be established when it would occur to others and was not limited to the applicant. In Richards v. Canada(Minister of Citizenship and Immigration) (1999), 169 F.T.R. 274, 1 Imm. L.R. (3d) 269 (F.C.T.D.) the Court citing Toth, above, in support, found that irreparable harm was established where the applicant was the primary caregiver for his elderly and blind grandmother. See also Goodman v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 1876 (F.C.T.D.) (QL); Charles v. Canada(Minister of Citizenship and Immigration) (1999), 171 F.T.R. 304, [1999] F.C.J. No. 1149 (F.C.T.D.) (QL); Belkin v. Canada(Minister of Citizenship and Immigration) (1999), 175 F.T.R. 129, 3 Imm. L.R. (3d) 302 (F.C.T.D.) and Chichester v. Canada(Minister of Citizenship and Immigration)[2000] F.C.J. No.1352 (F.C.T.D.) (QL).
[16] While Toth can be read as supporting the proposition for which it was cited in Richards, the jurisprudence on this question has been mixed. In Suresh v. Canada(Minister of Citizenship and Immigration), [1999] 4 F.C. 206 at 219-220, 176 D.L.R. (4th) 296 (F.C.A.), Justice Robertson stated that the risk of irreparable harm can be answered in one of two ways. The first involves an assessment of the risk of personal harm if a person is deported or deported to a particular country (emphasis added). The second involves an assessment of the effect of a denial of a stay application on a person's right to have the merits of his or her case determined and to enjoy the benefits associated with a positive ruling. The question of whether a negative stay decision would render the underlying applications nugatory was not pressed on this motion.
[17] In Tesoro v. Canada (Minister of Citizenship and Immigration) [2005] 4 F.C.R. 210, 2005 FCA 148 at paragraph 33, Justice Evans stated that as a general matter, decisions on the grant of stays tend to be very fact-specific determinations. He then went on to acknowledge that irreparable harm in the context of a stay motion may include family separation, and is not limited to threats to the deportee's life and limb. He concluded that irreparable harm was not present as the applicant had no children in Canada and he was not his parents' sole source of income, as he shared responsibility for his parents with his siblings. Nor was the applicant's wife financially dependent on him.
[18] There are several decisions of this court in which it has been emphasized that the harm anticipated must be personal to the applicants: Perry v. Canada (Minister of Public Safety and Emergency Preparedness), 2006 FC 378, [2006] F.C.J. No. 473 (QL); Carter v. Canada(Minister of Citizenship and Immigration, [1999] F.C.J. No. 1011 (F.C.T.D.) (QL); Nalliah v. Canada (Solicitor General), [2005] 3 F.C.R. 210, 2004 FC 1649.
[19] In Mariona v. Canada(Minister of Citizenship and Immigration) (2000), 9 Imm. L.R. (3d) 58, [2000] F.C.J. No. 1521 at paragraph 14 (F.C.T.D.) (QL) Justice Blais adopted the reasoning of Justice Gibson in Robinson v. Canada (1994), 74 F.T.R. 316 at paragraph 7 (F.C.T.D.):
I am sympathetic to the argument that the break up of a family unit produces substantial hardship which, in some circumstances, but not all, approaches the level or reaches the level of irreparable harm to the family unit. That is not the test. The issue, of course, is irreparable harm to the applicant.
[20] I acknowledge that as family members age and become ill, the hardships which typically accompany separation become much more difficult and may reach the level where they are more than the "usual consequences of deportation", as described by Justice Evans in Tesoro. However, the test for a stay, in my view, should focus primarily on the effect of the removal upon the applicants themselves.
[21] In this case, I am satisfied that the applicants have not established that they would suffer irreparable harm from their removal to Guyana, nor that their removal would result in irreparable harm to Ms. Tajram's father. The claimed effect of their removal on the father, in my view, is speculative. He is under medical care and has access to social services and the assistance of a family friend. Moreover, he has a son in Canada who undertook to be responsible for his father when he was sponsored. The son cannot abdicate that responsibility simply by declaring that he cannot get along with his father.
Balance of Convenience
[22] The applicants submit that as they have been in Canada for eight years without any evidence of criminality or that they pose a risk to Canadian society, the public interest in efficient removals is outweighed by competing public interests including the fairness of the removals process. In their submission, it is clearly more inconvenient to the applicants to be removed than it would be for the State to permit them to remain while the application is pending before the Court.
[23] A similar argument was addressed by Justice Evans in Selliah v. Canada(Minister of Citizenship and Immigration), 2004 FCA 261, [2004] F.C.J. No.1200 (QL) where he stated at paragraph 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.
[24] There are additional considerations in this matter. While the applicants have not been involved in criminality, the evidence before me indicates that they have actively taken steps to mislead the immigration authorities by providing false information and have otherwise failed to comply with the law. The respondent submits that the applicants have not come before the Court with clean hands and should, for that reason alone, be disentitled to the exercise of the Court's equitable jurisdiction: Manohararaj v. Canada(Minister of Citizenship and Immigration)2006 FC 376, citing Homex Realty and Development Co. v. Wyoming (Village), [1980] 2 S.C.R. 1011.
[25] The applicants submit that "deportation avoidance" behaviour such as they have displayed is to be expected from persons in their circumstances and should not, in itself, bar an equitable remedy. I do not need to decide that question on this motion but I am satisfied that it is a relevant additional factor supporting the conclusion that the balance of convenience does not lie in their favour.
ORDER
THIS COURT ORDERS that the motions for a stay of the removal of the applicants are dismissed.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3051-06
STYLE OF CAUSE: SURSATTIE TAJRAM
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 12, 2006
APPEARANCES:
| Leigh Salsberg
|
|
| David Cranton
|
SOLICITORS OF RECORD:
| LEIGH SALSBERG Jackman & Associates Barristers & Solicitors Toronto, Ontario
|
|
| JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario
|
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3052-06
STYLE OF CAUSE: HEMRAJ SINGH, SURSATTIE TAJRAM,
GAVENDRA SINGH and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 12, 2006
REASONS FOR ORDER: MOSLEY J.
DATED: June 15, 2006
APPEARANCES:
| Leigh Salsberg
|
FOR THE APPLICANTS |
| David Cranton
|
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
| LEIGH SALSBERG Jackman & Associates Barristers & Solicitors Toronto, Ontario
|
FOR THE APPLICANTS |
| JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario
|
FOR THE RESPONDENT |
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3077-06
STYLE OF CAUSE: HEMRAJ SINGH, SURSATTIE TAJRAM,
GAVENDRA SINGH and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 12, 2006
REASONS FOR ORDER: MOSLEY J.
DATED: June 15, 2006
APPEARANCES:
| Leigh Salsberg
|
FOR THE APPLICANTS |
| David Cranton
|
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
| LEIGH SALSBERG Jackman & Associates Barristers & Solicitors Toronto, Ontario
|
FOR THE APPLICANTS |
| JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario
|
FOR THE RESPONDENT |