Toronto, Ontario, April 16, 2007
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
and
AND EMERGENCY PREPAREDNESS
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is a motion for an injunction by which the Applicants seek to restrain the Respondent from carrying out their removal to Israel, scheduled for April 16, 2007.
[2] The Applicants came to Canada in December 2002 and made a refugee claim three weeks after arrival. The Applicants were determined not to be Convention refugees in April 2004 in part due to the lack of credibility of the principal Applicant; this Court affirmed that decision on judicial review. The Applicants were found not to be at risk in Israel and received a negative Pre-Removal Risk Assessment (PRRA) on January 9, 2007. On January 15, 2007, the Applicants submitted a s.25(1) application for inland processing of an application for landing. (Applicant’s Record p. 20; Antypov v. Canada (Minister of Citizenship and Immigration), 2004 FC 1589, [2004] F.C.J. No. 1931 (QL).)
[3] The Applicants were served with removal arrangements on February 21, 2007. Their departure, originally scheduled for March 13, 2007 was delayed until April 16, 2007. On February 28, 2007 the Applicants requested a deferral of removal. (Applicant’s Record pp. 12; 18.)
[4] The removals officer denied the Applicants’ request. The officer found that the Applicants’ medical issues could be addressed in Israel, relying on a medical opinion that medical care in Israel would be equivalent to that which the Applicant and her son would receive in Canada. The officer found that the Applicant had ample time to make arrangements for her return to Israel and that there was no basis for allowing deferral on the basis of allegations of risk. The recently submitted s. 25(1) application would be outstanding for several years and was not a basis for deferral. With respect to the Applicant’s Canadian child, the officer recognized the determination of the principal Applicant, who had decided that the child’s interests were in accompanying her to Israel. (Applicant’s Record pp. 20-22.)
ISSUES
(a) Have the Applicants met the tri-partite test for an injunction staying their removal from Canada? The underlying litigation, an application for leave and judicial review of the refusal to defer removal does not raise serious issues;
(b) Have the Applicants demonstrated that they will suffer irreparable harm if removed?
(c) Does the balance of convenience favour the Respondent?
ANALYSIS
Test for injunction
[5] There is a tri-partite test for determining whether interlocutory injunctions should be granted pending a determination of a case on its merits, namely, (i) whether there is a serious question to be tried; (ii) whether the litigant who seeks the interlocutory injunction would, unless the injunction is granted, suffer irreparable harm; and (iii) where does the balance of convenience lie, in terms of 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).)
[6] Since the underlying litigation is an application for leave and judicial review in respect of a deferral request, the normally ‘low threshold’ to meet in establishing a serious issue does not apply; the Court should undertake a close look at the merits of the underlying litigation. (Wang v. Canada (Minister of Citizenship and Immigration), 2001 FCT 148, [2001] F.C.J. No. 295 (QL).)
[7] The requirements of the tripartite test are conjunctive. That is, the Applicants must satisfy all three branches of the test before this Court can grant a stay of removal.
Serious Issue
[8] Removals officers, who have a duty to enforce removal orders, have only a limited discretion to defer removal. The only jurisdiction of the officer is to decide if removal is ‘reasonably practicable’ in the circumstances. (Simoes v. Canada (Minister of Citizenship and Immigration), 2000 F.C.J. No. 936 (QL).)
[9] In the instant case, the removals officer dealt with and considered the Applicant’s deferral request and reasonably determined that removal was ‘reasonably practicable’. The underlying litigation is without merit and the Applicants accordingly have failed to meet the first branch of the tri-partite test:
[10] In attempting to show that serious issues arise from the decision of the removals officer, the Applicants have filed material and relied on evidence which was not before the removals officer. It is not open to the Applicants to add to their deferral request after the fact of the decision.
[11] The Applicants argue that the officer erred in not appreciating that the Applicants will allegedly be unable to access the Israeli health care system, since the Applicants allegedly ‘cannot afford’ medical insurance in Israel. Leaving aside the credibility of that claim, the Applicants’ deferral request was not based on an inability to access health care due to impecuniosity. That claim, with accompanying evidence in the form of the principal Applicant’s affidavit, is advanced for the first time before this Court and is an improvisation on the Applicants’ deferral request. It is inappropriate for the Applicants to attempt to satisfy the ‘serious issue’ branch of the tri-partite test by relying on evidence which was not before the removals officer. (Applicant’s Record p. 12-17.)
[12] Similarly, the Applicants’ submission at paragraph 15 and 16 of the memorandum on the ‘special circumstances’ of the Applicants are based on evidence which the Applicants did not submit to the officer but have submitted to this Court for their deferral request; for example, evidence of a concern relating to the language of school instruction in Israel formed no part of the deferral request; that matter is raised by the principal Applicant in her affidavit before this Court. Accordingly, no serious issue is raised by the submission.
[13] With respect to the best interests of the children and the Applicants’ claim—relying on an interlocutory ruling of this Court--that the Convention of the Rights of the Child has been incorporated into domestic law through paragraph 3(3)(f) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), the Federal Court of Appeal has settled the matter to the contrary of the Applicants’ submissions: the Convention has not been incorporated into domestic law. (De Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436, [2005] F.C.J. No. 2119 (QL).)
[14] The removals officer considered the best interests of the children in this matter and it is the principal Applicant who has determined that her Canadian child, who was born two weeks after her arrival in Canada (Affidavit of Roksana Antypov, para. 5; Applicants’ Motion Record p. 8) will accompany her to Israel.
[15] Deferral in favour of a decision on the s. 25(1) application, which was submitted virtually on the eve of the Applicants’ removal, would result in a protracted delay of several years duration and the officer was entitled to decline to accede to the Applicants’ request for a protracted deferral.
[16] In essence, the Applicants do not seek a delay of their removal, but seek to have it, in effect, cancelled. That remedy is not available from the removals officer.
Irreparable harm
[17] The purposes of a stay of removal, "irreparable harm" is a very strict test. It implies the serious likelihood of jeopardy to the applicant's life or safety. Irreparable harm is very grave. It must be more than unfortunate hardship, including breakup or dislocation of family. (Duve v. Canada (Minister of Citizenship and Immigration) (1996), (March 26, 1996) Doc. No. IMM-3416-95 (F.C.T.D.); Melo v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 403 (F.C.T.D. (QL), paras. 20 – 21.)
[18] In Melo, the Court held:
[21] … if the phrase irreparable harm is to retain any meaning at all, it must refer to some prejudice beyond that which is inherent in the notion of deportation itself. To be deported is to lose your job, to be separated from familiar faces and places. It is accompanied by enforced separation and heartbreak.
[19] The Applicant has failed to establish irreparable harm. In Selliah v. Canada (Minister of Citizenship and Immigration), 2004 FCA 261, [2004] F.C.J. No. 1200 (QL), Justice John Maxwell Evans, states:
[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.
…
[15] The social and economic roots that the appellants have started to put down in Canada during the nearly four years that they have legitimately pursued all legal means of obtaining permanent residence status cannot in themselves provide the basis for a finding that the appellants' removal before their appeal is decided will cause them irreparable harm. If their appeal is successful, they will probably be permitted to return to Canada pending the new determination of their PRAA application.
[20] The Applicants’ evidence of irreparable harm is evidence of the emotional impact of family separation and dislocation. While these effects are no doubt real, they are also common in immigration matters and, were they sufficient on their own to make out irreparable harm; stays would be granted in most cases. Accordingly, this evidence is insufficient to demonstrate irreparable harm for the purposes of a stay of removal.
Balance of Convenience
[21] The inconvenience that the Applicants may suffer as a result of his removal from Canada does not outweigh the public interest in executing removal orders as soon as reasonably practicable in accordance with s. 48 of the IRPA.
[22] The public interest is to be taken into account and weighed together with the interests of private litigants. (Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110.)
[23] The balance of any inconvenience which the Applicants may suffer as a result of their removal from Canada does not outweigh the public interest which the Respondent seeks to maintain in the application of the IRPA, specifically the interest in executing deportation orders as soon as reasonably practicable. (IRPA, s. 48.)
JUDGMENT
THIS COURT ORDERS that the motion for an order to stay the removal be dismissed.
“Michel M. J. Shore”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1509-07
STYLE OF CAUSE: DANIEL MALYY; ROKSANA ANTYPOV
v. THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 16, 2007
APPEARANCES:
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Mr. Steven Beiles
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Mr. Lorne McClenaghan
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SOLICITORS OF RECORD:
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STEVEN BEILES Toronto (Ontario)
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JOHN H. SIMS, Q.C. Deputy Attorney General of Canada
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