Dockets: IMM-6382-06
IMM-6439-06
Toronto, Ontario, December 12, 2006
PRESENT: The Honourable Mr. Justice von Finckenstein
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Docket: IMM-6439-06
AND BETWEEN:
BERNADINE DAVID
Applicant
and
MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for a stay of removal slated for December 17, 2006.
[2] The Applicant is a citizen of Barbados and St. Lucia. She came to Canada as a visitor on November 19, 2001, and made a refugee claim on September 14, 2004. The Refugee Protection Division (“RPD”) denied her refugee claim on March 21, 2005, and no judicial review of that decision was ever sought.
[3] The Applicant filed an humanitarian and compassionate (“H & C”) application on August 2, 2005, which is still outstanding.
[4] On July 26, 2006, she was arrested and detained. She made a Pre-Removal Risk Assessment (“PRRA”) application on August 10, 2006. Her application was denied on October 18, 2006, and delivered to her while in detention on November 16, 2006. She was also told to report for removal on December 17, 2006. A request for deferral of removal was denied on December 6, 2005.
[5] The Applicant has applied for leave to seek judicial review of the two decisions: (1) the negative PRRA decision of October 18, 2006; and (2) the refusal to defer removal dated December 6, 2006.
[6] Under the triple conjunctive test of Toth v. Canada (Minister of Employment & Immigration) (1988), 86 N.R. 302 (F.C.A), the Applicant has to establish:
i) Serious issue;
ii) Irreparable harm; and
iii) Balance of convenience.
[7] I am not convinced that the Applicant has made out a case of irreparable harm for the following reasons.
[8] To support her position on irreparable harm the Applicant makes several assertions that can be summarized in the following four points:
i) fear of persecution by her ex-boyfriend and lack of protection from the state authorities in Barbados;
ii) fear of being unable to work in the food industry as she is HIV positive and the government allegedly test food industry workers to protect the tourist industry;
iii) fear of stigmatization by reason of being HIV positive; and
iv) need for medical treatment given her HIV positive status.
[9] It is well established that the evidence for irreparable harm must constitute more than a series of possibilities. It cannot be based on speculation or vague generalities (see Atwal v. Canada (Minister of Citizenship and Immigration), 2004 FCA 427, 330 N.R. 300 at para. 14. In addition, it must be more than the usual consequences of deportation. These consequences have been concisely described by Pelletier J. in Melo v. Canada (Minister of Citizenship and Immigration), (2000), 188 F.T.R. 39 at para. 21:
But 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.
[10] Similarly, Evans J.A. stated in Selliah v. Canada (Minister of Citizenship and Immigration), 2004 FCA 261 at para. 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.
[11] The evidence in this case either consists of points already dealt with in previous proceedings or is speculative and vague.
[12] Point i) was already examined by the PRD and the PRRA officer and was not accepted. The Applicant is not presenting any new evidence in that respect but merely repeats the assertions made before those two decision makers. Merely repeating assertions in previous proceedings is not sufficient to meet the Toth test (see Nalliah v. Canada (S.G.), 2004 F.C. 1649 at para. 27).
[13] Point ii) has not been established. No evidence as to the alleged testing other than the Applicant’s affidavit was presented. Secondly, even if it is true, it merely means loss of employment in one sector of the economy, i.e., a possible lack of employment in the Applicant’s area of choice. It is well established that employment loss is one of the unfortunate side effects of removal but does not amount to irreparable harm.
[14] As to point iii) it is truly vague and speculative. No evidence other than the general statements contained in the affidavit has been presented. Without further evidence the Court is unable deal with this point.
[15] As to point iv) the Applicant is presently not receiving any treatment. She is merely being monitored as her initial treatment was successful. Again her assertions are mere speculation.
[16] Accordingly, as the irreparable harm prong of the Toth test has not been established this application must fail.
ORDER
THIS COURT ORDERS that this application be denied.
“Konrad W. von Finckenstein”
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKETS: IMM-6382-06 and IMM-6439-06
STYLE OF CAUSE: BETWEEN:
BERNADINE DAVID v. THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
AND BETWEEN:
BERNADINE DAVID v. MINISTER OF PUBLIC
SAFETY AND EMERGENCY PREPAREDNESS
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December 11, 2006
REASONS FOR
ORDER AND ORDER: von FINCKENSTEIN J.
DATED: December 12, 2006
APPEARANCES:
|
Ms. Melinda Gayda |
FOR THE APPLICANT |
|
|
|
|
Mr. David Cranton |
FOR THE RESPONDENT (MCI and MPSEP) |
SOLICITORS OF RECORD:
|
REFUGEE LAW OFFICE Toronto, Ontario |
FOR THE APPLICANT
|
|
|
|
|
John H. Sims, Q.C. Deputy Attorney General of Canada Toronto, Ontario |
FOR THE RESPONDENT (MCI and MPSEP) |