Montréal, Quebec, June 19, 2006
Present: The Honourable Mr. Justice Shore
BETWEEN:
Applicant
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1] This is a motion to stay the enforcement of a removal order issued against the applicant until a decision has been made on his application for an exemption for a permanent residence visa on humanitarian and compassionate grounds (hereinafter the “HC application” or the “application for exemption”) and/or until the final decision of the Federal Court on his application for leave and for judicial review.
[2] The applicant’s removal to his native country, Nigeria, is scheduled on June 20, 2006.
[3] This motion to stay is attached to an application for leave and for judicial review that was filed with the Federal Court on June 12, 2006, and served on the respondent on June 15, 2006. In this application for leave, the applicant:
§ Is seeking a decision from the Court in the nature of mandamus. The applicant alleges that the respondent omits, neglects or refuses to make a decision regarding his application for exemption submitted in November 2004 in the immigration matter bearing file number 5323-2235.
§ Is seeking to set aside the decision to enforce the removal order by the removal officer dated June 5, 2006.
[4] The application for leave and for judicial review filed by the applicant bears on two different decisions (refusal to make a decision (mandamus) and enforcement of the removal order).
[5] In Gonsalves v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 588 (QL), Mr. Justice Muldoon states the following:
In this case, there are two preliminary matters. The first is that the applicant appears to be challenging two decisions, the appeal division's decision declining jurisdiction to hear the applicant's appeal and the issuance of the "danger opinion" itself. Under Section 18.1 of the Federal Court Act, R.S.C. 1985, Chap. F-7, only one decision may be reviewed on any one application for judicial review. According to the application for leave and for judicial review, the impugned decision was that of the appeal division declining jurisdiction. As a result, the challenge to the danger opinion is not properly before the Court.
(See also: Tei v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1902 (QL))
[6] The applicant cannot challenge two decisions in the same application for leave.
[7] In accordance with subsection 364(3) of the Federal Courts Rules, SOR/98-106, the applicant had until June 14, 2006, 5:00 p.m. (two business days before the hearing date), to serve the respondent with his motion record and the submissions that he intended to raise at the hearing on his stay application. The applicant chose to serve his motion record on the respondent on June 13, 2006 at 12:07 p.m. He cannot simply allege in his motion record [translation] “the short time period” to support his evidence and arguments and reserve himself the right to amend his claims at the hearing, thereby surprising the respondent who clearly would not have the opportunity to adequately respond to the applicant’s amended claims.
[8] As it appears from the affidavit of Raymond Dubrule, the applicant has known for many months that he has no status in Canada and that his removal was imminent. Specifically, he has known since June 5, 2006, that his removal had been scheduled for June 20, 2006. Therefore, the applicant has been aware of the date of his removal more than a week for more than a week and he certainly cannot allege “a short time period” in a motion to stay and take the respondent by surprise at the hearing.
STATEMENT OF FACTS
[9] For a summary of the facts as well as a description of the applicant’s immigration file, the respondent refers this Court to the affidavit of Raymond Dubrule, filed in support of this reply record. This affidavit refers to many relevant and significant documents in the applicant’s immigration record.
ANALYSIS
[10] In order to assess the merits of the motion to stay, this Court must determine whether the applicant meets the case law requirements as stated by the Federal Court of Appeal in Toth. v. Canada (Minister of Employment and Immigration), 86 N.R. 302 (F.C.A.), [1998] F.C.J. No. 587 (QL):
(1) there is a serious issue to be tried;
(2) there is irreparable harm; and
(3) the assessment of the balance of convenience.
[11] The three requirements must be met before this Court grants the stay sought. If a single one of them is not met, this Court cannot grant the stay sought (Pao v. Canada (Minister of Citizenship and Immigration), 2005 FC 941, [2005] F.C.J. No. 1173).
(A) Irreparable harm
[12] The notion of irreparable harm was defined by the Court in Kerrutt as being the removal of a person to a country where his life and his safety are in danger (Kerrutt v. Canada (Minister of Employment and Immigration), (1992) 53 F.T.R. 93, [1992] F.C.J. No. 237; Lewis v. Canada (Minister of Citizenship and Immigration), 2003 FC 1271, [2003] F.C.J. No. 1620 (QL)).
[13] In terms of irreparable harm, the applicant alleges (paragraphs 10 to 12 of his affidavit and paragraph 8 of his submissions) that he still fears returning to Nigeria based on his fear of being threatened by the Ogboni organization, which created severe health and stress problems for him.
[14] This irreparable harm alleged by the applicant involves exactly the same facts presented to the RPD, which were determined to lack credibility (see exhibit A).
[15] These same facts were also reviewed by the Federal Court, which dismissed the application for leave and for judicial review of the RPD’s decision (see exhibit A).
[16] The applicant also submitted these same facts in support of his PRRA application. The officer, after considering the RPD’s analysis, and after proceeding with his own analysis of the evidence submitted before him, determined that the applicant had not met his burden of proof, i.e. that he personally would be at risk in Nigeria.
[17] The risks alleged before the RPD as well as before the PRRA officer, all found to lack credibility and to be deficient, cannot amount to irreparable harm. On that point, the Court refers to the following cases:
Simply alleging that the persons will suffer the harm they have claimed in their PRRA applications is not sufficient for the purposes of the test. I first note that the vast majority of the affected persons have received the benefit of a number of risk assessments. Prior to the PRRA decisions, in all cases, the affected persons have been party to earlier processes under the IRPA.
(Nalliah v. Canada (Solicitor General) (F.C.), [2005] 3 F.C.R. 210, 2004 FC 1649)
See also:
This Court has held that where an applicant's account was found not to be credible by the Refugee Division, this account cannot serve as a basis for an argument supporting irreparable harm in a stay application . . .
(Akyol v. Canada (Minister of Citizenship and Immigration), 2003 FC 931 (F.C.), [2003] F.C.J. No. 1182 (QL))
(See also Knyasko v. Canada (Minister of Citizenship and Immigration), IMM-3240-06; Ulusoy v. Canada (Minister of Citizenship and Immigration), IMM-3277-05)
[18] With regard to the health problems and stress alleged by the applicant, they are supported by a simple general allegation by the applicant in his affidavit and that allegation is not supported by any evidence, medical or otherwise.
[19] The applicant certainly does not establish that his removal to his country will cause him irreparable harm.
[20] As the applicant has not satisfied the irreparable harm requirement, this motion to stay must be dismissed on that basis alone.
[21] Nevertheless, the following can be said on the subject of the serious issue.
(B) Serious issue
[22] The applicant alleges that his former counsel, Ms. Langelier, attempted in vain to contact CIC to provide additional documents in support of his HC application and to meet with him in order to discuss the matter (paragraph 3 of the submissions).
[23] In response, the respondent refers to paragraph 15 of the affidavit of Raymond Dubrule, affirming that all of the documents that the applicant filed as exhibits in support of his motion to stay, including inter alia all of the correspondence from his former counsel, Michelle Langelier, is in his immigration record. With regard to the meeting, CIC had no obligation to meet with his former counsel for his HC application, especially considering the stage of that application at CIC-Montréal.
[24] At paragraph 5 of his submissions, the applicant alleges that the decision does not respect the application of the principles of natural justice, in particular because it does not allow the applicant to be heard before his removal.
[25] This argument is far too general and there is no evidence supporting it. This was the decision of the removal officer. In that case, it need only be said that the applicant had been entitled to several meetings with the CIC officers before a removal date was set (see paragraphs 11 to 14 of the affidavit of Raymond Dubrule). Further, with regard to the right to be heard, the respondent pointed out that the applicant was able to claim refugee status, file an application for leave and an application for judicial review (ALJR) against this decision by the RPD, as well as apply for a PRRA. He exhausted the recourse available to him by law.
[26] At paragraph 6 of his submissions, the applicant alleged that he raised serious issues, namely that new factors and events arose after the date of the hearing to raise in his application for leave in this case.
[27] These allegations are much too general and they are not supported by any evidence or information. Therefore, the respondent is unable to respond to the applicant’s allegations.
[28] In his affidavit, the applicant referred to a regional directive and/or policy and alleged that the CIC had the obligation to assess the risks that he raised in his HC application before his removal from Canada. He alleged the doctrine of legitimate expectation and that he expected and is entitled to have the risk assessment done before his departure.
[29] Is it worthwhile to repeat that the applicant was entitled to several assessments of the alleged risks since he arrived in Canada (RPD, ALJR, PRRA). All of these assessments were negative. In his HC application, as well as in support of this motion to stay, the applicant alleges exactly the same facts that were found to be inadequate and/or to lack credibility for the purposes of establishing a risk of return to his country.
[30] The applicant’s HC application will take its course regardless of his removal.
[31] The case law of this Court states that a pending application on humanitarian grounds does not in itself amount to a serious issue in the context of a stay (Padda v. Canada (Minister of Citizenship and Immigration), 2003 FC 1081 (F.C.), [2003] F.C.J. No. 1353, 2003 FC 1081 (F.C.); Lail v. Canada (Solicitor General of Canada), IMM-10238-03, January 19 2004 (F.C.); Benitez v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1307 (F.C.), [2001] F.C.J. No. 1802; Adviento v. Canada (Minister of Citizenship and Immigration), 2003 FC 1430, [2003] F.C.J. No. 1837, 2003 FC 1430)
[32] With regard to the applicant’s allegation that the lack of a decision on his HC application and deportation to his country are contrary to sections 7 and 12 of the Canadian Charter of Rights and Freedoms, it is well established that the removal of an inadmissible person or a foreign national is not inconsistent with the principles of natural justice and that the enforcement of that removal is not inconsistent with sections 7 and 12 of the Charter (Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] S.C.R. 711).
[33] The applicant has certainly not established that there is a serious issue to be tried by the Court.
[34] The Court also addresses the mandamus procedure since this motion is joined to such an application.
Mandamus
[35] A writ of mandamus is an extraordinary remedy that cannot be applied except in limited circumstances.
[36] The pre-existing conditions for issuing a writ of mandamus are clearly established in the decision by the Federal Court of Canada in Khalil v. Canada (Secretary of State), [1999] F.C.J. No. 1093. The Court reiterated the requirements stated in Apotex Inc. v. Canada (Attorney General), [1993] F.C.J. No. 1098:
Mandamus is a discretionary equitable remedy. Before this Court will order a writ of mandamus, the following criteria, as set out by Mr. Justice Robertson in Apotex Inc. v. Canada; [See Note 6 below] must be satisfied:
Note 6: [1994] 1 F.C. 742 (C.A.), aff'd [1994] 3 S.C.R. 1100.
(a) there must be a public legal duty to act under the circumstances;
(b) the duty must be owed to the applicant;
(c) there must be a clear right to performance of that duty, and in particular the applicant must have satisfied all conditions precedent giving rise to the duty;
(d) no other adequate remedy is available to the applicant;
(e) the order sought must have some practical effect;
(f) in the exercise of its discretion, the court must find no equitable bar to the relief sought; and,
(g) on a balance of convenience, an order of mandamus should issue. [See Note 7 below]
[37] The applicant has not satisfied all of these conditions necessary to justify issuing a writ of mandamus.
[38] The fees for the applicant’s HC application were paid on or about November 17, 2004, (see affidavit of Raymond Dubrule and affidavit of Suzanne Alary).
[39] According to the record, the respondent never refused to act or process the applicant’s application for exemption and the time period for doing so is not unreasonable.
[40] On that point, this Court refers to the affidavit of Suzanne Alary, establishing that the processing of the HC application filed by the applicant is following its course, and that it is completely normal that a decision has not yet been made since the applicant paid the fees for his application for exemption in November 2004, about 19 months ago and CPC-Vegreville referred his HC application to CIC Montréal, on December 19, 2005, about 6 months ago.
[41] Pursuant to subsection 25(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, (IRPA), the Minister may dispense a foreign nation from the obligation to have a visa exemption based on humanitarian and compassionate grounds. It is an entirely discretionary process.
[42] It is worthwhile to note that the Act or the regulations did not set limits or specific time periods on the officers in performing their duties in regard to their determinations on exemption applications based on humanitarian and compassionate grounds.
[43] This Court decided, in Bakhsh v. Canada (Minister of Citizenship and Immigration), 2004 FC 1060, [2004] F.C.J. No. 1281 (QL), on the processing time for an application pursuant to subsection 25(1) of the IRPA.
In this case the Respondent concedes that there is a public duty to act and that the duty is owed to the Applicant. The only contentious issue is whether the delay in performing the statutory duty is unreasonable. An unreasonable delay in rendering a decision is generally considered to be an implied refusal to perform the public legal duty. This Court has held that the following requirements must be met for a delay to be considered unreasonable:
1. The delay is longer than the nature of the process required, prima facie;
2. The Applicant and his counsel are not responsible for the delay; and
3. The authority responsible for the delay has not provided satisfactory justification. (See Conille v. Canada (MCI), [1999] 2 F.C. 33 (T.D.).)
With respect to the first of the three requirements set out above the Respondent concedes that the delay of almost four years in processing the H&C application is almost twice as long as would normally be the case. There is little doubt that such a delay is longer than the nature of the process requires and, I so find. The Respondent also concedes that the Applicant cannot be faulted for the delay. While the Applicant admits being responsible seven months of the delay, I agree that, otherwise, the evidence clearly supports that the Applicant cannot be faulted for the extensive delay.
[44] In another matter decided in July 2004, this Court stated the following:
It is accepted that a writ of mandamus may issue to compel the performance of a legal duty. Jurisprudence of this Court has also established that unreasonable delay in performing a statutory duty may also warrant the issuance of a writ of mandamus. Delay, in such circumstances, will be unreasonable where it has been longer than the nature the process requires. The Applicant is not responsible for the delay and no satisfactory justification has been provided for the delay [See Conille v. Canada (Minister of Citizenship and Immigration), [1999] 2 F.C. 33].
The Respondent does not dispute that she has a legal duty to perform, i.e. render a decision on the Applicant's application for landing. The evidence is also clear that the Applicant cannot be held responsible for the lengthy delays. The Respondent, moreover, has not provided any precise explanation for the long delay and simply pleads that the case is now moving forward.
The unexplained delay by the Minister of five years since the time of the granting of the exemption, or over four years since the request for additional information and documents, is perplexing. On the evidence before me, however, I cannot conclude that the delay is excessive or inordinate given the nature of the process. For the reasons that follow, I decline to grant the extraordinary relief sought.
(Khan v. Canada
(Minister of Citizenship and Immigration), 2004 FC 981, [2004]
F.C.J. No. 1202 (QL))
[45] In this matter, there is no evidence that the delay for processing the exemption application was excessive or inordinate given the nature of the process. There is no indication that in this matter, the delay was the result of CIC’s inaction or indifference. To the contrary, it is clear that the matter has followed its course and that the delay is not unreasonable (see affidavit of Suzanne Alary).
[46] In Singh v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 585 (QL), this Court determined that the Minister cannot be held responsible for systemic delays as is clearly the case in this matter:
It would appear to me that the applicant's application is being duly processed, given that although his application for permanent residence was filed in June, 1995, it has only been eight months since Security Review received the CSIS report. In my opinion, this does not place the Minister's actions outside of the timeframe in subsection 46.04(6) of the Act, which imposes a duty to decide on the application "as soon as possible". It seems to me that the delay in this instance is merely a systemic one, and there is no evidence of unreasonable delay. I would thus follow Justice Muldoon's reasoning in Carrion v. Canada (M.E.I.), [1989] 2 F.C. 584 (F.C.T.D.), wherein he held that systemic delays cannot be attributed to the respondent Minister. Again, as Justice Muldoon states at page 589:
The Court cannot find, as the applicant's counsel urges, that the Minister is delaying or declining to perform any legal duty. It is trite law that such a finding is a prerequisite for mandamus. [. . .]
[47] Considering the foregoing, the time that elapsed before a decision was made on the applicant’s HC application is not unreasonable and, accordingly, issuing a writ of mandamus is not justified.
[48] The applicant has not established that there is a serious issue to be tried.
(C) Balance of convenience
[49] Subsection 48(2) of the Act provides that a removal order must be enforced as soon as circumstances so allow (Mobley v. M.C.I., IMM-106-95, January 18, 1995).
[50] The Court of Appeal developed the issue of the balance of convenience in the matter of stays and of public interest which must be taken into consideration:
(iii) Balance of convenience
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.
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.
(Selliah v. Canada (Minister of Citizenship and Immigration), 2004 FCA 261, [2004] F.C.J. No. 1200)
(See also: Atwal v. Canada (Minister of Citizenship and Immigration), 2004 FCA 427, [2004] F.C.J. No. 2118 (QL); Dasilao v. Canada (Minister of Citizenship and Immigration), 2004 FC 1168, [2004] F.C.J. No. 1410 (QL))
[51] In this case, the applicant was able to file a refugee claim, to file an application for leave and for judicial review against this decision by the RPD. Further, he was able to make a PRRA application. He exhausted the recourse allowed by law.
[52] The balance of convenience is therefore in favour of the respondent.
CONCLUSION
[53] For all of the above-mentioned reasons, this motion to stay is dismissed.
JUDGMENT
THE COURT ORDERS that the motion to stay the enforcement of the removal order be dismissed.
“Michel M.J. Shore”
Judge
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3165-06
STYLE OF CAUSE: EMMANUEL CHIMAOBIM IWEKAOGWO
v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: June 19, 2006
REASONS FOR JUDGMENT: SHORE J.
DATE OF REASONS: June 19, 2006
APPEARANCES:
|
Jean-Philippe Trudel
|
FOR THE APPLICANT |
|
Isabelle Brochu
|
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
|
JEAN PHILIPPE TRUDEL Quebec, Quebec
|
FOR THE APPLICANT |
|
JOHN H. SIMS, Q.C. Deputy Attorney General of Canada
|
FOR THE RESPONDENT |