Toronto, Ontario, April 16, 2007
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
BACKGROUND
[1] The Applicant, a citizen of the Ukraine, has filed a motion for a stay of the execution of the removal order against him. The underlying applications for leave challenge the Pre-Removal Risk Assessment (PRRA) decision and the negative Humanitarian and Compassionate decision (H&C). In both his PRRA and H&C, the Applicant alleged fearing persecution as a Baptist in the Ukraine. (PRRA, Applicant’s Motion Record, pp. 450-457; H&C Decision, Applicant’s Motion Record, pp. 487-492.)
ISSUE
[2] The test for granting a stay is well established. The Applicant must establish that:
(a) There is a serious question to be tried;
(b) The moving party would, unless the injunction is granted, suffer irreparable harm; and
(c) . The balance of convenience favours the moving party.
(Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.), [1988] F.C.J. No. 587 (QL); R.J.R.-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311.)
[3] The requirements of the tripartite test are conjunctive. That is, the Applicant must satisfy all three branches of the test before this Court can grant a stay of proceedings. (Toth, above; Marenco v. Canada (Minister of Citizenship and Immigration) (1994), 86 F.T.R. 299, [1994] F.C.J. No. 1690 (QL).)
ANALYSIS
SERIOUS ISSUE
[4] The Applicant is arguing that the H&C Officer’s assessment of risk was erroneous because she applied the test for risk under sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) and did not determine whether the risk faced by the Applicant constituted unusual, undue, or disproportionate hardship. This argument is without merit, as the Officer assessed the risk together with other H&C factors, and following this analysis, made a determination that these factors did not constitute unusual, undue or disproportionate hardship:
I am not satisfied that the applicant has presented sufficient humanitarian and compassionate grounds to warrant an exemption from the immigrant visa requirement. I am not satisfied that complying with legislative requirements will result in the applicant facing unusual, undeserved or disproportionate hardship. Therefore, his request is refused.
(Reasons, Applicant’s Motion Record, p. 491.)
[5] In the risk analysis, the Officer did not find that the Applicant’s risk would constitute undue hardship, the Officer, also, found that the Applicant had not demonstrated that he was personally at risk in the Ukraine. After making this determination and assessing the other humanitarian factors, such as the Applicant’s establishment in Canada, the Officer determined that these factors do not amount to undue or disproportionate hardship. The Officer did, in fact, render his assessment with thorough reasons. (Reasons, Applicant’s Motion Record, pp. 490-491.)
[6] In his H&C application, the Applicant argued that he should be granted an H&C exemption due to a risk to himself in the Ukraine because he is a Baptist, and as he is established in Canada. The Officer properly considered these factors in reaching her determination that this particular Applicant would not suffer unusual or undue hardship should he be required to apply to Canada through the normal immigration avenues. Specifically, the Officer noted the following factors:
(a) The Applicant alleged the same risk of persecution in his refugee claim, his PRRA and his H&C. The Applicant was found not to be at risk in both his previous refugee claim and in his PRRA. While the Officer noted that she was not bound by the Refugee Protection Division (RPD) findings, she found that the RPD is an expert body in the determination of risk of persecution and thus determined that considerable weight would be given to the Board’s findings with respect to risk.
(b) The recent documentary evidence does not support the Applicant’s assertion that there is widespread discrimination against Baptists. Rather, the Officer found that discrimination exists at some isolated local levels.
(c) The country reports indicate that Government sought, at all levels, to protect the right to freedom of religion and did not tolerate its abuse; however, instances of minority religions experiencing difficulty in buying and leasing property, did exist according to the evidence.
(d) The country reports indicate that the Evangelical Baptist Union of Ukraine has grown the most rapidly since independence, with more than 500,000 members. Other minority Christian groups have also increased their membership.
(e) The Applicant may have experienced problems some 7-20 years ago in the Ukraine but the concept of risk is forward looking. There was insufficient evidence that he would be at risk today.
(f) While the Applicant has a certain degree of establishment in Canada, such as continuous employment, since he arrived in 1999, he has been out of status since 2002 and has had no legitimate expectation that he would be allowed to stay.
(g) The Applicant is a 45 year old man who has spent the majority of his life in the Ukraine. He has shown an ability to adapt and succeed. There was insufficient evidence that returning to his country of origin would constitute undue hardship.
(h) The Applicant’s belief that he will not qualify for overseas processing is not undue or unusual hardship.
(i) The Applicant has no family in Canada.
(Reasons, Applicant’s Motion Record, pp. 489-491.)
[7] As can be seen from the thorough analysis described above, the Officer’s determination that this Applicant had failed to demonstrate unusual, undue or disproportionate hardship that would warrant granting an H&C exemption does not raise a serious issue. The Applicant’s risk has been assessed in three separate applications, and each time the decision-maker has found the Applicant not to be at risk; furthermore, the Applicant’s submission that he has a certain degree of establishment in Canada is not evidence that leaving would cause undue or disproportionate hardship. This Court has repeatedly held that the hardship suffered by the Applicant must be more than mere inconvenience of the predictable costs associated with leaving Canada, such as selling a house or a car, leaving a job or family or friends. The Officer’s determination that there was nothing unusual in this case was reasonable.
[8] Contrary to the Applicant’s submission, the Officer’s determination that the Applicant’s establishment should be given little weight in part because the Applicant was without status and had no expectation that he would be allowed to stay in Canada, is an appropriate and relevant consideration. This Applicant assumed the risk of establishing himself in Canada while his immigration status was uncertain and knowing that he may be required to leave. Now that he is required to leave and apply for landing from outside Canada, given that he did assume this risk, the Applicant cannot now contend, on the facts of his case, that the hardship is unusual, undeserved or disproportionate. This H&C determination is reasonable and should not be disturbed. (Uddin v Canada (Minister of Citizenship and Immigration), 2002 FCT 937, [2002] F.C.J. No. 1222 (QL), para. 22.)
[9] The content of the PRRA decision is also eminently reasonable. The PRRA Officer understood that her analysis under subsection 113(a) of the IRPA was restricted to new evidence presented that arose after the rejection of the refugee decision, or was not reasonably available at that time. She found that this Applicant, who alleged the same risk of persecution as a Baptist in the Ukraine as was alleged in his refugee claim, failed to address the concerns raised by the RPD. Specifically, the Officer conducted a thorough analysis of the evidence, and made the following nuanced and reasonable findings:
(a) The PRRA application reiterates the same facts articulated at the refugee hearing.
(b) The new country documents contain updates on the information on country conditions in the Ukraine already considered by the RPD. The documents do not address or rebut any of the concerns raised by the RPD, including the determination that the documentary evidence failed to show that the Applicant would be at risk of persecution as a Baptist.
(c) The documents indicate that there are isolated problems of religious discrimination at local levels. The government does not condone such practices.
(d) The Applicant failed to rebut the presumption of state protection. The U.S. Department of State report stated that the government does not tolerate religious discrimination. While there are some problems with property restitution, the government facilitated the return of some communal properties.
(e) The All-Ukraine Council of Churches and Religious Organizations is an influential, interconfessional government advisory body. The Council of Evangelical Protestant Churches also provided a forum to enhance coordination between various denominations, resolve disputes and discuss legislation. This council represents 80% of the country’s Protestant organizations.
(f) Protestant Churches have grown rapidly in the years since independence. In particular, the Evangelical Baptist Union of Ukraine has grown the most rapidly since independence, with more than 500,000 members. Other minority Christian groups have also increased their membership.
(Reasons, Applicant’s Motion Record, pp. 454-455.)
[10] The Applicant has taken issue with the state protection analysis in the PRRA decision. The Applicant is arguing that the Officer has mistaken the state’s theoretical willingness to protect with actual adequate protection. There is no merit to this argument, as the findings above demonstrate that there were actual avenues of protection for those experiencing religious discrimination in the Ukraine, and not simply theoretical laws in place to protect them. The Officer, for example, noted that several established organizations advocate for and resolve disputes on behalf of Protestant Christians. In addition, the government is assisting to resolve property disputes. (Reasons, Applicant’s Motion Record, p. 455.)
[11] The fact that the Applicant would weigh the totality of evidence differently than the Officer does not raise a serious issue. Indeed, the fact that the Officer cited and discussed both the positive and negative aspects of the evidence, acknowledging that there are cases of religious discrimination, demonstrates a thorough and reasonable analysis of evidence; furthermore, the fact that the Applicant has pointed to cases where the Court found state protection in the Ukraine to be questionable, is fully considered. Nevertheless, this Court has also upheld decisions relying on the availability of state protection in the Ukraine. Each case must be decided on its own facts and the decision in this case is considered reasonable. There is no serious issue. (Zlobinski v. Canada (Minister of Citizenship and Immigration), 2007 FC 305, [2007] F.C.J. No. 424 (QL); Keller v. Canada (Minister of Citizenship and Immigration, 2003 FC 1063, [2003] FCJ No. 1346.)
IRREPARABLE HARM
[12] This Court has held that irreparable harm is a strict test in which serious likelihood or jeopardy to the applicant’s life or safety must be demonstrated. In this case, the Applicant’s submissions on irreparable harm include the same risk of persecution he alleged he faced in the Ukraine, already advanced in his refugee claim, his PRRA application, and his H&C application.
[13] The Applicant has had his risk as a Baptist assessed on three separate occasions, in his refugee claim, in his H&C and in his PRRA, and each time he was found not to be at risk in the Ukraine. This alleged risk, already reasonably assessed, does not meet the test for irreparable harm. (Manohararaj v. Canada (Minister of Citizenship and Immigration), 2006 FC 376, [2006] F.C.J. No. 495 (QL); Sesay v. Canada (Minister of Citizenship and Immigration), IMM-912-07, IMM-914-07.)
[14] The Applicant relies on the decision of Justice Luc Martineau in Figurado v. Canada (Minister of Solicitor General), 2005 FC 347, [2005] F.C.J. No. 458 (QL), to argue that his application for judicial review (assuming that leave is granted) will be moot if he is removed. Most recently, Justice Frederick Gibson has released another decision that also concluded that the applications for judicial review of negative PRRA was moot, since the person had been removed. (Nalliah v. Canada (Minister of Citizenship and Immigration), 2005 FC 759, [2005] F.C.J. No. 956 (QL).)
[15] For the purposes of this motion, this Court (including Justice Martineau, who decided Figurado, above), has held that an individual with an outstanding leave application can nevertheless be removed. For example, as Justice James O’Reilly found in Kim v. Canada (Minister of Citizenship and Immigration), 2003 FCT 321, [2003] F.C.J. No. 452 (QL), at paragraph 9: “…nothing in the Act or the Rules that would interfere with the entitlement of a PRRA applicant, who has been removed from Canada and who is successful on judicial review, to have that application reconsidered..” Further, as Justice Martineau decided in Akyol:
[11] Sixth, the deportation of individuals while they have outstanding leave applications and/or other litigation before the Court, is not a serious issue nor does it constitute irreparable harm: Ward v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 86 (T.D.) at para. 12; and Owusu v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1166 (T.D.). I also note that the application for leave and judicial review will continue regardless of where the applicants are located, and that they can provide instructions to counsel as to how to proceed with the litigation from the U.S. or, should they end up there, Turkey.
(Akyol v. Canada (Minister of Citizenship and Immigration), 2003 FC 931, [2003] F.C.J. No. 452 (QL), and cases cited therein; Ryan v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1939 at para. 8.)
[16] This Court and the Court of Appeal routinely dismiss stays where there are outstanding applications for leave and for judicial review or appeals, including applications or appeals of negative PRRAs. (Selliah v. Canada (Minister of Citizenship and Immigration), 2004 FCA 261, [2004] F.C.J. No. 1200 (F.C.A.) (QL); El Ouardi v. Canada (Solicitor General), 2005 FCA 42, [2005] F.C.J. No. 189 (QL); Sivagnanansuntharam v. Canada (Minister of Citizenship and Immigration), 2004 FCA 70, [2004] F.C.J. No. 325 (F.C.A.) (QL); Tesoro v. Canada (Minister of Citizenship and Immigration), 2005 FCA 148 (F.C.A.).)
[17] The proper, persuasive, and authoritative approach is the one articulated by the Federal Court of Appeal that has held that removing an applicant from Canada while his appeal of his negative PRRA is pending, does not render his/her rights nugatory. In Selliah, above, Justice John Maxwell Evans stated, at paragraph 20: “Since the appeal can be ably conducted by experienced counsel in the absence of the appellants and since, if the appeal is successful, the appellants will probably be permitted to return to Canada at public expense, I cannot accept that removal renders their right of appeal nugatory.”
[18] Further, Justice Judith Snider considered but rejected a similar argument to the one advanced by the Applicant and ultimately concluded that the application is not rendered nugatory by removal. In Nalliah v. Canada (Minister of Citizenship and Immigration), [2005] 3 F.C.R. 210, [2004] F.C.J. No. 2005 (QL), Justice Snider relied on Kim, above, and on the Court of Appeal’s decision in Selliah, above, and noted , as follows:
[30] The second branch of Mr. Nalliah's argument is that the loss of the right to continue the litigation constitutes irreparable harm. Contrary to these submissions, if the injunction is refused, their right to an effective remedy will not be rendered nugatory. As Mr. Justice O'Reilly stated in Kim v. Canada (Minister of Citizenship and Immigration) (2003), 33 Imm. L.R. (3d) 95 (F.C.T.D.), at paragraph 9: "nothing in the Act or the Rules would interfere with the entitlement of a PRRA applicant, who has been removed from Canada and who is successful on judicial review, to have that application reconsidered" .
[31] In Selliah v. Canada (Minister of Citizenship and Immigration), 2004 FCA 261, at paragraph 20, Justice Evans of the Court of Appeal stated:
Since the appeal can be ably conducted by experienced counsel in the absence of the appellants and since, if the appeal is successful, the appellants will probably be permitted to return to Canada at public expense, I cannot accept that removal renders their right of appeal nugatory.
[32] The cases of Suresh and Resulaj, referred to by Mr. Nalliah may be distinguished on the basis that, in both of those cases, there was significant evidence supporting a personalized risk. From a review of the jurisprudence, I conclude that irreparable harm cannot be solely founded on difficulty in pursuing legal rights of challenge once removed from Canada.
[19] In addition, it was clearly not the intent of Parliament to allow all negative PRRA recipients to remain in Canada, pending the outcome of any litigation related to their PRRA decisions. Parliament chose to provide a statutory stay of removal pending the outcome of an application for leave of a negative refugee decision by the RPD. Parliament further envisioned statutory stays in certain specified circumstances related to PRRAs, as set out in R. 232, none of which included applications for leave challenging negative PRRA decisions. (Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations), ss. 231-232.)
[20] Therefore, Parliament intended that persons, whose PRRA applications had been rejected, could be removed. This is also consistent with s.48 of the IRPA, which provides that the Minister is obligated to effect valid removal orders as soon as practically possible. Any other interpretation would place the rights of an unsuccessful PRRA applicant, ahead of the legal obligation on the Minister, rights and obligations which Parliament has intentionally balanced through the statutory provisions in the IRPA. Justice Gibson acknowledged this in Nalliah, above, at paras. 22-23.
[21] Thus, the statement that redetermination of a PRRA application is rendered nugatory by removal, is contrary to the IRPA and the Regulations, as well as the jurisprudence of the Federal Court of Appeal. Accordingly, in this case, the view that removal will render the application for judicial review moot is not considered valid.
[22] Justice Martineau’s decision in Figuardo, above, and Justice Gibson’s decision in Nalliah, above, do not imply that irreparable harm will result from the possibility of a moot application. Rather, since Justice Gibson agrees with Justice Snider’s finding, he was clearly not of the view that his finding of mootness equates with a finding of irreparable harm. Furthermore, he bases his decision on Regulation 232 and the fact that Parliament did not see fit to extend statutory stays to PRRA litigants. Finally, the question Justice Gibson certified distinguishes between irreparable harm in the stay context and mootness in the judicial review context. That is, the certified question clearly envisions the possibility that a person will be removed because their stay was dismissed and no irreparable harm was established, and concurrently, that the Court may grant leave and then find that the application for judicial review is moot.
[23] Accordingly, in analyzing the reasoning of Justice Martineau in Figurado, above, and Justice Gibson in Nalliah, above, regarding the mootness of a PRRA application for judicial review, this does not necessarily result in irreparable harm. Justice Gibson’s decision and certified question suggests that irreparable harm –in particular, evidence that establishes personalized risk--must be established irrespective of the mootness issue.
[24] This is precisely what Justice Eleanor Dawson determined in Ryan, above: “… it seems to me that something more than mootness must be established in order to constitute irreparable harm. Otherwise, by definition irreparable harm would exist whenever the validity of a decision not to defer removal is put in issue.”
[25] The Federal Court of Appeal has also suggested that the possibility of mootness cannot always equate to irreparable harm because every stay would then give rise to irreparable harm. This is certainly not the intention of Parliament, which specifically chose not to include outstanding PRRA litigation as a basis for a statutory stay, and it could not be the intention of Justice Martineau (who decided both Akyol and Figurado) or Justice Gibson in Nalliah. Writing for the Federal Court of Appeal, Justice Marshall Rothstein in El Ouardi, above, stated as follows:
[8] The appellant argues that her appeal will be rendered nugatory if the stay is not granted, resulting in irreparable harm. The difficulty with the argument that an appeal being rendered nugatory amounts to irreparable harm is that if it is adopted as a principle, it would apply to virtually all removal cases in which a stay is sought and would essentially deprive the Court of the discretion to decide questions of irreparable harm on the facts of each case. In some cases, the fact that an appeal is rendered nugatory will amount to irreparable harm. In others, it will not. The material indicates that the appellant's husband may apply to sponsor her return to Canada. While removal will cause hardship, it is not clear that rendering the appeal nugatory will result in irreparable harm.
[26] Therefore, for these reasons, the Applicant, in this case, has not established irreparable harm.
BALANCE OF CONVENIENCE
[27] The Applicant has not met the third aspect of the tri-partite test, insofar as the balance of convenience favours the Minister and not the Applicant.
[28] Section 48 of the IRPA provides that an enforceable removal order must be enforced as soon as is reasonably practicable.
[29] The Applicant is seeking extraordinary equitable relief. It is trite law that the public interest must be taken into consideration when evaluating this last criterion. In order to demonstrate that the balance of convenience favours the Applicant, the latter should demonstrate that there is a public interest not to remove him as scheduled. (R.J.R.-MacDonald, above; Blum v. Canada (Minister of Citizenship and Immigration), (1994) 90 F.T.R. 54, [1994] F.C.J. No. 1990 (QL), per Justice Paul Rouleau.)
[30] As stated by the Justice John Sopinka in Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711, at 733:
The most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in the country.
[31] The Applicant has not demonstrated that the balance of convenience favours the non-application of the law nor outweigh the public interest. The Applicant has had the benefit of a refugee hearing, a Pre-Removal Risk Assessment, and an H&C application. The balance of convenience favours the Minister in these circumstances.
JUDGMENT
THIS COURT ORDERS that the stay of removal be dismissed.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1431-07
STYLE OF CAUSE: SERGIY GOLUBYEV
v. THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 16, 2007
APPEARANCES:
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Ms. Wennie Lee
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Ms. Alison Engel-Yan
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SOLICITORS OF RECORD:
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LEE & COMPANY / BARRISTERS Toronto, Ontario
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JOHN H. SIMS, Q.C. Deputy Attorney General of Canada
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