Date: 20050622
Docket: IMM-1381-05
Citation: 2005 FC 880
Ottawa, Ontario, June 22, 2005
PRESENT: THE HONOURABLE MR. JUSTICE de MONTIGNY
BETWEEN:
JUSTINO JOAQUIM JOAO, MARIA VICTORIANA JOAO PEDRO JOAQUIM,
WELWITSCHIA DA GRACA PEDRO FRANCISCO, DEBORA LASSALETTE
FRANCISCO, ANA DE JESUS PEDRO FRANCISCO, RAQUIELA DESALMIRA
PEDRO PEREIRA, TEODORA PEDRO FRANCISCO, OSVALDO CLAUDIO PEDRO
DA SILVA, MARCIA DA GRACA PEDRO DA SILVA, CESALTINA DE JESUS PEDRO
DA SILVA AND RAQUIEL ELIZANGELA PEDRO FRANCISCO
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] The Applicants have requested a stay of deportation pending their application for leave and, if granted, for judicial review of the negative decision on their application for permanent residence on humanitarian and compassionate grounds.
[2] After having heard the parties by teleconference on June 14, 2005, I granted an interim stay until June 30, 2005, so that the children could complete their school year. I further indicated that a final decision would be made on the requested stay shortly thereafter. After having carefully reviewed the parties' submissions and given much thought to the various implications of this decision, I have come to the conclusion that this application for a stay should be dismissed, for the following reasons.
[3] The Applicants are citizens of Angola by virtue of their birth in that country. The family is made up of the principal applicant, his spouse, their four biological children and five nieces, who are the children of Mrs. Joaquim's deceased sister. The principal applicant and his spouse also have a Canadian born child. One of the nieces, Welwitschia Da Graca Pedro Francisco, also has a Canadian born child, but she is not part of this application as she has decided to take action separately.
[4] The principal applicant's wife based her claim on her perceived political opinion as a sympathizer of the National Union for the Total Independence of Angola (UNITA) and her membership in a particular social group, that of the Bakongo tribe. Her husband, children and nieces base their claim on that of the principal claimant's wife and their membership in a particular social group, namely, relatives of a Bakongo woman, thus perceived as being Bakongos themselves.
[5] Because of contradictions and implausibilities in the evidence given by the claimants, the Immigration and Refugee Board was not satisfied as to the credibility of the applicants' accounts of events and therefore found that they did not face a serious possibility of persecution in Angola for a Convention ground because of their ethnicity, their political opinion or for any other reasons. The applicants made an application for leave to review the Board's decision, which was denied by the Federal Court on June 8, 2001.
[6] Their Pre-Removal Risk Assessment (PRRA) application was based on the same grounds of ethnicity and political affiliation. In a decision dated 22 July, 2004, the PRRA officer came to the conclusion that there was no evidence of a systematic persecution or targeting of Bakongo. It was found that the situation had changed completely since the signature of the peace accord in 2002, and that as a consequence the applicants would not face a risk to life or to the security of the person if they were to return to Angola. The Applicants did not apply for leave and for judicial review of that decision.
[7] Finally, the Applicants have filed an application for permanent residence on humanitarian and compassionate grounds, which was denied on February 10th, 2005. The officer from Citizenship and Immigration Canada was of the view that the family was not sufficiently established in Canada, and she was not convinced that they would encounter unusual and undeserved or disproportionate hardship, due to their personal circumstances, were they to apply for permanent residence from their home country.
[8] The Applicants have sought leave from this Court to commence an application for judicial review of that decision, and have raised a number of legal issues in the context of that application: failure to provide written reasons in a timely fashion, a failure of the duty of fairness and the principles of natural justice when the H & C officer rendered her decision before receiving the information she requested from the Applicant's counsel, further breach of those principles when she refused to reconsider her decision after having received that information, refusal to proceed to her own risk assessment, fettering of her discretion by limiting her consideration of establishment to employment.
[9] Even if I was prepared to assume that the Applicants have raised a serious issue, considering the low threshold against which this notion is to be measured in the context of the tripartite test for the grant of a stay, I am not convinced that they have established an irreparable harm if they were to be removed to Angola. It is well established that the deportation of individuals while they have outstanding leave applications does not, in and of itself, amount to irreparable harm (Akyol v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1182; Ward v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 86 (F.C.); Owusu v. Canada (Minister of Citizenship and Immigration),.[1995] F.C.J. No. 1166 (F.C.)).
[10] I should say that the Applicants are being removed to the United States, not Angola. This Court has held that removal to the United States does not constitute irreparable harm, even if the person concerned may be detained. The United States is presumed to treat detainees and refugee claimants fairly. It will be up to the American authorities to decide whether the Applicants should eventually be removed to Angola (Mikhailov v. Minister of Citizenship and Immigration), [2000] F.C.J. No. 642; Akyol v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1182).
[11] Furthermore, I note that the risk invoked by the Applicants upon their return to Angola is based on the same reasons as those already assessed by the Refugee Division and the PRRA officer. As held by this Court in a number of cases, when the applicant's account has been found not to be credible both by the Refugee Division and a PRRA officer, this same 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] F.C.J. No. 1182; Saibu v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 151; Hussain v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 751; Ahmed v. Canada (Minister of Citizenship and Immigration), [2001] 1 F.C. 483).
[12] I am mindful of the fact that the removal of the applicants will disrupt their lives that they have started to build here. But as this Court has repeated on a number of occasions, this kind of hardship typically occasioned by removal cannot constitute irreparable harm for the purpose of the Toth rule (Toth v. Canada (Minister of Employment and Immigration), (1988) 86 N.R. 302 (F.C.A.)); if it were to be otherwise, stays would have to be granted in most cases, as soon as a serious issue had been raised.
[13] For all of the foregoing reasons, I am of the view that the Applicants' motion for a stay of removal must be dismissed. As a result, they will be removable at the expiry of the interim stay, on June 30, 2005.
(s) "Yves de Montigny"
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: JOAQUIM JOAO et al v. MCI
PLACE OF HEARING: Ottawa and Toronto via teleconference call
DATE OF HEARING: June 14, 2005
REASONS FOR ORDER: de Montigny J.
APPEARANCES:
Ms. Geraldine MacDonald For the Applicants
Mr. Greg George For the Respondent
Toronto, Ontario
SOLICITORS OF RECORD:
Ms. Geraldine MacDonald For the Applicants
Mr. John H. Sims, Q.C. For the Respondent
Deputy Attorney General of Canada