Montreal, Quebec, January 31, 2007
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
Ilya PUSHKAROV and
Alex TULIN-LITVIN
and
THE
Minister for public safety
and emergency preparedness
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1] [10] …I am therefore of the view that where a motion for a stay is made from a Removal Officer's refusal to defer removal, the judge hearing the motion ought not simply apply the "serious issue" test, but should go further and closely examine the merits of the underlying application.
[11] In RJR-MacDonald Inc., supra, the Supreme Court of Canada held that, in the context of constitutional issues, motions judges faced with a request for an interlocutory injunction ought not to delve into the merits of the underlying application other than to determine that there is indeed a serious issue to be tried. But the Court went on to identify two circumstances where the Court should address the merits, one of which is where the interlocutory application will effectively decide the underlying application. In that case, the Court said, the motions judge should address the merits of the application… It is that the test of serious issue becomes the likelihood of success on the underlying application since granting the relief sought in the interlocutory application will give the applicant the relief sought in the application for judicial review.
Justice Denis Pelletier in Wang v. Canada (Minister of Citizenship and Immigration), 2001 FCT 148, [2001] F.C.J. No. 295 (QL) in a similar case to the one at bar.
[2] Moreover, Justice Pelletier, also, in Wang, above, stated that a pending application for humanitarian and compassionate consideration rarely warrants a deferral of removal:
[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. (Emphasis of the Court.)
JUDICIAL PROCEDURE
[3] The Applicants are citizens of Israel. They have filed a motion seeking a stay of the deportation order pending against them until this Court renders a final decision on the Application for Leave contesting the negative decision of the Law Enforcement Officer refusing to defer their removal from Canada.
[4] The Respondent submits that the removal of the Applicants to Israel should take place as scheduled on February 1, 2007.
BACKGROUND
[5] The Affidavit of Ms. Josée Groulx offers a detailed chronology of the Applicants’ file to which reference is made in respect of the salient points in the analysis portion of the decision.
issue
[6] Do the Applicants meet the tri-partite test established by this Court to decide motions to stay the execution of removal orders?
analysis
[7] In order to be granted a stay of their removal, the Applicants must demonstrate that they meet all three criteria of the tri-partite test established by the Federal Court of Appeal in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.), [1988] F.C.J. No. 587 (QL), they need to demonstrate (1) a serious issue to be tried, (2) that they will suffer irreparable harm if the deportation order is executed and (3) that the balance of convenience favours them instead of the Minister. (RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 (QL).)
SERIOUS ISSUE
[8] In response to the Applicants, the threshold to be met is very low concerning the serious issue in their case. Justice Pelletier in Wang, above, stated:
[10] …I am therefore of the view that where a motion for a stay is made from a Removal Officer's refusal to defer removal, the judge hearing the motion ought not simply apply the "serious issue" test, but should go further and closely examine the merits of the underlying application.
[11] In RJR-MacDonald Inc., supra, the Supreme Court of Canada held that, in the context of constitutional issues, motions judges faced with a request for an interlocutory injunction ought not to delve into the merits of the underlying application other than to determine that there is indeed a serious issue to be tried. But the Court went on to identify two circumstances where the Court should address the merits, one of which is where the interlocutory application will effectively decide the underlying application. In that case, the Court said, the motions judge should address the merits of the application… It is that the test of serious issue becomes the likelihood of success on the underlying application since granting the relief sought in the interlocutory application will give the applicant the relief sought in the application for judicial review.
[9] Therefore, the Court hearing the Applicants’ motion, not only applies the "serious issue" test, but, goes further and closely examines the merits of the underlying application.
[10] The Applicants contend that the Law Enforcement Officer’s discretion was fettered because she allegedly claimed that there would be no deferral of the Applicants’ removal from Canada; this, based on their H&C applications for permanent residence in Canada that were forwarded after their Pre Removal Risk Assessment (PRRA) applications were received.
[11] Furthermore, the Applicants submit that the Law Enforcement Officer’s discretion was fettered by policy; and s.25(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) was to facilitate processing in accordance with the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations) of the spouse or common law partner in Canada class.
[12] In matters concerning policy, Justice David H. Doherty, for the Ontario Court of Appeal in Ainsley Financial Corp. v. Ontario Securities Commission, [1994] O.J. No. 2966 (QL) established that:
[12] Non-statutory instruments, like guidelines, are not necessarily issued pursuant to any statutory grant of the power to issue such instruments. Rather, they are an administrative tool available to the regulator so that it can exercise its statutory authority and fulfil its regulatory mandate in a fairer, more open and more efficient manner…
…
[14] …Most importantly, for present purposes, a non-statutory instrument cannot impose mandatory requirements enforceable by sanction; that is, the regulator cannot issue de facto laws disguised as guidelines. Iacobucci J. put it this way in Pezim at p. 596:
However, it is important to note that the Commission's policy-making role is limited. By that I mean that their policies cannot be elevated to the status of law; they are not to be treated as legal pronouncements absent legal authority mandating such treatment.
[13] In Ha v. Canada (Minister of Citizenship and Immigration), 2004 FCA 49, [2004] F.C.J. No. 174 (QL), Justice J. Edgar Sexton for the Federal Court of Appeal narrowed down the role of policy:
[78] Importantly, as previously mentioned, decision-makers are free to enact guidelines to assist them in the exercise of the discretion as long as these guidelines are not mandatory and as long as visa officers consider the particular facts of each case in determining the content of the duty of fairness. An example of a validly worded guideline is provided in Ken Yung Yhap v. Canada (Minister of Employment and Immigration), [1990] 1 F.C. 722:
It is important... that officers realize that these guidelines are not intended as hard and fast rules. They will not answer all eventualities, nor can they be framed to do so. Officers are expected to consider carefully all aspects of cases, use their best judgment [sic], and make the appropriate recommendations.
[14] The Respondent specified that, upon learning that the Applicants had submitted a second sponsored application for permanent residence for humanitarian and compassionate grounds, the Law Enforcement Officer’s first reflex was to check whether or not the removal could be deferred according to the Public Policy under 25(1) of IRPA to facilitate processing in accordance with the Regulations of the spouse or common law partner in Canada class.
[15] Upon recognizing that the Applicants could not benefit from a deferral of their removal based on that policy, the Law Enforcement Officer explained the situation in that regard to the Applicants.
[16] Further, no final decision on the deferral was taken at that point. The Law Enforcement Officer continued to study the document prepared by the Applicants’ counsel in which a request was made for a deferral of their removal from Canada.
[17] Had the Law Enforcement Officer’s discretion been fettered by the policy, as the Applicants’ contend, she would not have continued to consider their counsel’s request for deferral of their removal.
[18] The Respondent specified that the Law Enforcement Officer duly exercised her discretion upon returning to her office to consider the Applicants’ counsel’s request for deferral of their removal from Canada (paragraph 14, last arrow of the Affidavit of Josée Groulx).
[19] The fact that the Law Enforcement Officer came to a negative conclusion regarding the deferral does not indicate that her discretion was fettered by policy. Rather, the terms she applied in rendering her decision clearly indicate that she considered the request for deferral. The decision states: “After reviewing the facts and allegations included in your request, this confirms that the deferral of removal is refused” (Exhibit “E” of the Affidavit of Josée Groulx).
[20] The Applicants argue that the removal officer did not provide sufficient reasons in support of her decision not to defer their removal.
[21] The duty of removal officers was canvassed in Boniowski v. Canada (Minister of Citizenship and Immigration), 2004 FC 1161, [2004] F.C.J. 1397 (QL), at paras. 11-12, (T.D.). This Court has determined that there is no necessity for more formal, written reasons required for administrative reasons in such a matter.
[22] In Hailu v. Canada (Solicitor General), 2005 FC 229, [2005] F.C.J. No. 268, Justice Conrad von Finkenstein confirms categorically that the decisions rendered by removal officers do not require a formal decision with reasons. There were no reasons or notes in this case except for an affidavit from the officer which was filed in response to the judicial review. Justice von Finkenstein did indicate that keeping notes is “useful and ought to be encouraged, it is however not an absolute requirement”.
[23] The Applicants’ request to stay their removal was made on January 9, 2007 during the interview with the Law Enforcement Officer.
[24] The Law Enforcement Officer took notes during her interview which briefly explain that which happened during the interview, as per Exhibit “A” of the Affidavit of Huguette Godin.
[25] The Law Enforcement Officer indicated in her affidavit that she considered the following elements before rendering her decision:
Ø Tous les faits au dossier des demandeurs. En outre j’ai tenu compte du fait que la demanderesse était mariée à un citoyen canadien et que sa première demande de parrainage avait été refusée parce que l’agent d’immigration n’avait pas cru à la bonne foi de son mariage, mais qu’elle estimait avoir été mal représentée par ses conseillers de l’époque. J’ai pris en considération le fait que le demandeur Alex Tulin-Litvin était fiancé à une Canadienne et que l’autre demandeur, Ilya Pushkarov, était étudiant au secondaire. À l’égard du demandeur Ilya, je me suis enquise du niveau auquel il était rendu et voyant qu’il n’était pas prêt de recevoir un diplôme, j’ai jugé qu’un report du renvoi pour cette raison n’était pas justifié. J’ai également tenu compte du fait que les demandeurs n’ont soulevé aucune raison médicale les empêchant de voyager et du fait qu’ils n’ont jamais allégué quelque danger que ce soit advenant un retour en Israël;
Ø La demande de report du renvoi qui m’a été remise par le procureur des demandeurs le 9 janvier 2007.
(Affidavit of Josée Groulx, paragraph 15.)
[26] On January 9, 2007, the Law Enforcement Officer rendered her decision refusing to defer the removal:
This will acknowledge receipt of your request for an administrative deferral of removal for the above mentioned family.
After reviewing the facts and allegations included in your request, this confirms that the deferral of removal is refused.
The removal process will continue and only a stay of removal issued by the Federal Court can stop the removal.
(Exhibit “E” of the Affidavit of Josée Groulx)
[27] In light of the foregoing, it is clear that the reasons provided by the removal officer in the present case are sufficient.
IRREPARABLE HARM
[28] The second requisite element of the tri-partite test for the granting of a stay of removal is to determine whether the Applicants would suffer irreparable harm if they are removed from Canada. (Toth, above, RJR-MacDonald, above.) The Applicants have not shown that this part of the test has been met.
[29] The Applicants must demonstrate that removal would result in a reasonable likelihood of harm. (Soriano v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 414 (F.C.T.D.) (QL).)
[30] The notion of irreparable harm has been defined by the Court as follows:
[22] In Kerrutt v. M.E.I. (1992), 53 F.T.R. 93 (F.C.T.D.) Mr. Justice MacKay concluded that, for the purposes of a stay application, irreparable harm implies the serious likelihood of jeopardy to an applicant's life or safety. This is a very strict test and I accept its premise that irreparable harm must be very grave and more than the unfortunate hardship associated with the breakup or relocation of a family.
(Calderon v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 393 (QL).)
[31] Irreparable harm is more substantial and more serious than personal inconvenience. It implies the serious likelihood of jeopardy to an Applicant’s life, liberty or security of the person, or an obvious threat of ill treatment in the country to which removal will be effected. (Mikhailov v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 642 (F.C.T.D.) (QL); Frankowski v. Canada ((Minister of Citizenship and Immigration), [2000] F.C.J. No. 935 (F.C.T.D.); Louis v. Canada ((Minister of Citizenship and Immigration), [1999] F.C.J. No. 1101 (F.C.T.D.).)
[32] A conclusion that the Applicant will suffer irreparable harm if removed cannot be based on speculation or mere possibility. The evidence supporting such a finding must be clear and non-speculative. (Chen v. Canada ((Minister of Citizenship and Immigration), 2004 FC 464, [2004] F.C.J. No. 567 (F.C.) (QL); Atakora v. Canada (Minister of Employment and Immigration), [1993] 68 F.T.R. 122 (F.C.T.D.), [1993] F.C.J. No. 826 (QL); John v. Canada ((Minister of Citizenship and Immigration), [1999] F.C.J. No. 915 (F.C.T.D.) (QL).)
[33] Neither unpleasant conditions in the country to which the Applicant is scheduled to be removed, nor the fact that Canada is a preferable place to live, constitutes irreparable harm. (Abazi v. Canada (Minister of Citizenship and Immigration.), [2000] F.C.J. No. 429 (F.C.T.D.) (QL).)
[34] The Applicants allege at paragraphs 66-88 several factors which they claim constitute irreparable harm.
[35] Most of those factors are linked to the separation of their family. The Applicant Iren with her husband Valery Mirinichov, the Applicant Alex with his fiancée Maria Potashova, the Applicants with Iren’s mother Tatiana Lebedev-Litvin, the Applicants Alex and Ilya with their stepfather Valery Mirinichov and grandmother Tatiana Lebedev-Litvin.
[36] Justice John M. Evans of the Federal Court of Appeal has stated in Selliah v. Canada (M.C.I.), [2004] F.C.J. No. 1200 (QL) that :
[13] The removal of persons who have remained in Canada without status will always disrupt the lives that they have succeeded in building here. This is likely to be particularly true of young children who have no memory of the country that they left. Nonetheless, the kinds of hardship typically occasioned by removal cannot, in my view, constitute irreparable harm for the purpose of the Toth rule, otherwise stays would have to be granted in most cases, provided only that there is a serious issue to be tried: Melo v. Canada (Minister of Citizenship and Immigration) (2000), 188 F.T.R. 39.
[37] In a recent decision in Perry v. Canada (Minister of Public Safety and Emergency), 2006 FC 378, [2006] F.C.J. No. 473, it was reiterated that:
[31] This Court has held that the break-up or relocation of an applicant's family is not a sufficient basis upon which to find that the applicant will suffer irreparable harm if removed. (Mallia v. Canada (M.C.I), [2000] F.C.J. No. 369 (F.C.T.D.); Mikhailov v. Canada (M.C.I.), [2000] F.C.J. No. 642 (F.C.T.D.); Aquila v. Canada (M.C.I.), [2000] F.C.J. No. 36 (F.C.T.D.))
[32] In Tesoro, the Federal Court of Appeal recently considered irreparable harm in some detail and held that family separation is not necessarily a basis for finding irreparable harm. To the contrary, family separation is merely one of the consequences of deportation. (Tesoro v. Canada (M.C.I), [2005] F.C.J. No. 698, 2005 FCA 148 at paras. 34-42).
[38] In addition, the Applicants allege that should they be forced to leave Canada (paras. 84-86 of their written observations):
· Valery Mironichev, the Applicant Iren’s Canadian husband, will be separated from her and his stepchildren;
· Maria Potashova, the Canadian fiancée of Applicant Alex, will be separated from him and that her health is fragile;
· Tatiana Lebedev-Litvin, the mother of Applicant Iren and grandmother to Applicants Alex and Ilya, will be separated from them.
[39] In Perry, above, it was specified that irreparable harm is evaluated from the Applicant’s standpoint and not from the standpoint of the family members remaining in Canada:
[30] Even where separation caused by removal may produce substantial economic or psychological hardship to a family unit, the test remains whether the applicant himself will suffer irreparable harm. (Mariona v. Canada (M.C.I.), [2000] F.C.J. No. 1521 (T.D.); Carter v. Canada (M.C.I.), [1999] F.C.J. No. 1011 (T.D.); Balvinder v. Canada (M.C.I.) (unreported, December 15, 2005, IMM-7360-05))
[40] In light of the above, the Applicants have not shown that the separation of their family constitutes irreparable harm.
[41] Moreover, Justice Pelletier, in Wang, above, stated that a pending application for humanitarian and compassionate consideration rarely warrants a deferral of removal:
[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.
[42] In the case at bar, the Applicants’ pending applications for permanent residence based on humanitarian and compassionate consideration do not invoke a risk related to their personal safety. (Applicants’ Record, p. 47-49)
[43] Furthermore, the Applicants did not apply for leave to this Court of their negative PRRA decision.
[44] The Refugee Protection Division (RPD) came to the conclusion that State protection was available to the Applicants in Israel (Exhibit “A” of the Affidavit of Josée Groulx) and although they sought an application for leave from this Court against the negative RPD decision, it was denied on October 9, 2003.
[45] The Applicants also allege at paragraph 75 of their written representations that they will face discrimination if they are returned.
[46] This allegation, however, is not supported by an affidavit and cannot be considered by this Court. (Kukan v. Canada (Minister of Manpower and Immigration), [1974] 1 F.C. 12, [1974] F.C.J. No. 20 (QL).)
[47] Nonetheless, in a similar case Abramov v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1579 (QL), in which the applicant was alleging that she and her minor child would suffer discrimination if they were to return to Israel, Justice Evans concluded that discrimination that was not life threatening did not constitute irreparable harm:
[13] First, the harassment and discrimination in Israel that the principal applicant alleged that she had experienced were not life-threatening, nor did they deprive her of her liberty in any of the most obvious ways. Even if she were exposed to similar conduct on her return to Israel pending the disposition of the judicial review proceeding, I do not believe that she would thereby sustain irreparable harm
[48] In another attempt to show irreparable harm, the Applicants pointed out that the Applicant Alex Tulin-Litvin will be incarcerated if he is sent back to Israel because he objected to serve in the Israeli army.
[49] As stated in the uncontested negative PRRA decision, the Israeli law imposing military service is an ordinary law of general application and the consequences incurred by conscientious objectors do not amount to persecution. (Zolfagharkhani v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 540, [1993] F.C.J. No. 584 (QL).)
[50] Given that the Applicant, Alex Tulin-Litvin, knowingly contravened a law of general application, the Respondent specified that he fears prosecution rather than persecution and that this does not constitute irreparable harm.
[51] Lastly, with regard to the Applicants’ alleged fear of return to Israel based on country conditions, the Applicants did not apply for leave against the very recent negative PRRA decision dated December 5, 2006. In this decision the PRRA officer reviewed the Applicants’ situation and concluded that:
Après avoir pris en considération les dossiers d’immigration des demandeurs dans leur entier, l’ensemble de leurs représentations ainsi que la documentation publique pertinente, je conclu que les demandeurs Iren Tulina-Litvin, Alex Tulin-Litvin et Ilya Pushkarov ne sont pas des personnes à protéger tel que précisé aux articles 96 et 97 de la LIPR, car n’ayant pas démontré de risque personnel de persécution et que le cas échéant, pourraient se prévaloir de la protection de l’état.
(Applicants’ Record, Page 29.)
[52] Moreover, the Applicant Iren Tulina-Litvin does not allege in her affidavit how she would be at risk if she were to be returned to Israel. She alleges at paragraph 17 of her affidavit that she is adducing a travel advisory for Israel and surrounding areas prepared by foreign affairs. (Applicants’ Record, page 8.)
[53] In respect of this document, at pages 446-453 of the Applicants’ Record, it does not advise travelers to leave Israel. Rather, it is a travel advisory specifically in regard to the West Bank and the Gaza Strip; and furthermore, advises caution throughout the country.
[54] This document predates the PRRA decision which concluded that the Applicants incurred no personal risk if they were to return to Israel.
THE BALANCE OF CONVENIENCE
[55] Pursuant to section 48 of IRPA, the Respondent has a duty to execute an enforceable removal order “as soon as is reasonably practicable”:
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48. (1) A removal order is enforceable if it has come into force and is not stayed.
(2) If a removal order is enforceable, the foreign national against whom it was made must leave Canada immediately and it must be enforced as soon as is reasonably practicable. |
48. (1) La mesure de renvoi est exécutoire depuis sa prise d’effet dès lors qu’elle ne fait pas l’objet d’un sursis.
(2) L’étranger visé par la mesure de renvoi exécutoire doit quitter immédiatement le territoire du Canada, la mesure devant être appliquée dès que les circonstances le permettent. |
[56] It is trite law that the public interest must be taken into consideration when considering this last criterion.
[57] In order to demonstrate that the balance of convenience favours the Applicants, the Applicants would have had to show that there is a public interest not to remove them as scheduled. (RJR-MacDonald, above; Blum c. Canada (Minister of Citizenship and Immigration), [1994] 90 F.T.R. 54, [1994] F.C.J. No. 1990 (QL).)
[58] As stated by Justice John Sopinka in Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 135 N.R. 161 (SCC) (though dealing with an extradition case): “…The most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in the country...”
[59] The Applicants have not demonstrated that the balance of convenience favors them.
CONCLUSION
[60] For the reasons listed above, the Applications of the Applicants for a stay of removal is dismissed.
JUDGMENT
THIS COURT ORDERS that the motion for an order to stay the removal of the Applicants be dismissed.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-190-07
STYLE OF CAUSE: Iren Tulina-Litvin,
Ilya PUSHKAROV and
Alex TULIN-LITVIN
v. THE
Minister for public safety
and emergency preparedness
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: January 29, 2007
REASONS FOR JUDGMENT: SHORE J.
APPEARANCES:
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Mr. Peter Shams
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Ms. Zoé Richard
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SOLICITORS OF RECORD:
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SAINT-PIERRE GRENIER Montreal (Quebec)
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JOHN H. SIMS, Q.C. Deputy Attorney General of Canada
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