Citation: 2007 FC 201
Ottawa, Ontario, February 22, 2007
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
TANYA AVIANNE ABERDEEN
Applicants
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondent
[1] The applicants, mother and 12-year-old daughter, arrived in Canada in July 2002 on a visitors visa which was good for one year. They have been unsuccessful in their attempts to obtain permanent resident status. Their first application to be processed from within Canada on humanitarian and compassionate grounds, their claim for refugee status and their pre-removal risk assessment (PRRA) have all been negative. They are due to be returned to Trinidad and Tobago next week.
[2] They asked the immigration enforcement officer to defer their removal because they have two other pending applications, a second H&C application and a skilled worker application. The enforcement officer refused, which refusal is the subject of an application for leave and for judicial review. In the meantime, they have sought a stay of the removal order pending that application.
[3] It was open to the enforcement officer to defer removal. Had I been that officer, I may well have done so. With some regret, I have come to the conclusion that there are insufficient grounds to grant a stay pending the determination of the application for leave and for judicial review.
[4] As enunciated in such cases as Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302, in order to obtain an interlocutory stay, the applicants must meet a tripartite test. There must be a serious issue in the underlying court application. There would be irreparable harm if the stay were not granted, and the balance of convenience must rest with them.
[5] Subsection 48(2) of the Immigration and Refugee Protection Act requires a foreign national to leave Canada once a removal order is enforceable “and it must be enforced as soon as is reasonably practicable”. In the applicants’ case, the removal order became enforceable once the negative PRRA decision was handed down last November.
[6] The applicants submitted there were a number of reasons why the enforcement officer should have exercised her discretion and deferred the removal:
a. A skilled worker application was filed in January 2006.
b. The current H&C application was received in April 2006.
c. The applicants’ entire family is in Canada, not Trinidad and Tobago.
d. Ms. Jackson is currently employed, is active in the community and has filed impressive character reference letters.
e. Tanya is an excellent and popular student.
f. Trinidad and Tobago abounds with sexual predators.
[7] In her notes to file, the enforcement officer acknowledged these points. Applicants’ counsel says they may have been acknowledged but were not analysed. However, there was some analysis. There are delays in the system, delays which in fact are published on government websites. The decisions on the skilled worker and H&C applications are not imminent. There does not appear to have been any administrative error which may have contributed to a delay such as implied in Razzaq v. Canada (Minister of Citizenship and Immigration), 2006 FC 148, [2006] F.C.J. No. 192 (QL) (varied, 2006 FC 442, [2006] F.C.J. No. 554 (QL)). Based on Paterson v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 139 (QL), counsel submitted that there is a policy not to enforce a removal order if an H&C application has been pending for more than six months. However, if there was such a policy then, there does not appear to be such a policy now.
[8] It has been suggested that Tanya will lose her school year. However, no evidence was given to the enforcement officer as to school terms, or that summer school is not available.
[9] Finally, the basis of Ms. Jackson’s fear of returning to Trinidad and Tobago is that she would be subjected to sexual predators. There had been a neighbour who had given her concern. He may have been mentally unstable as police labelled him a “madman”. Then she was in a relationship that she considered abusive. However, these points were analyzed with considerable compassion by the Refugee Division, and by the PRRA Officer. They were of the view that there was no basis for a claim for persecution. In addition, the same points were considered and rejected in the first H&C application.
[10] Ms. Jackson may well be successful on her second H&C application, as she now has a greater connection with Canada, and she may well be a skilled worker entitled to be processed through the Canadian consulate in Buffalo. However, I cannot find that the enforcement officer’s decision not to defer removal would cause her and her daughter irreparable harm. Thus at some point they may be able to return. That is not for the enforcement officer to decide.
[11] Furthermore, in this case the balance of convenience favours the Minister. In Selliah v. Canada (Minister of Citizenship and Immigration), 2004 FCA 261, [2004] F.C.J. No. 1200 (QL), Mr. Justice Evans had this to say:
[21] Counsel says that since the appellants have no criminal record, are not security concerns, and are financially established and socially integrated in Canada, the balance of convenience favours maintaining the status quo until their appeal is decided.
[22] I do not agree. They have had three negative administrative decisions, which have all been upheld by the Federal Court. It is nearly four years since they first arrived here. In my view, the balance of convenience does not favour delaying further the discharge of either their duty, as persons subject to an enforceable removal order, to leave Canada immediately, or the Minister's duty to remove them as soon as reasonably practicable: IRPA, subsection 48(2). This is not simply a question of administrative convenience, but implicates the integrity and fairness of, and public confidence in, Canada's system of immigration control.
[12] The fact remains that non-citizens do not have an unqualified right to remain here (Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711. The issue is not what the Minister ought to have done, but rather whether what he did do stands up to a judicial stay analysis.
ORDER
THIS COURT ORDERS that the applicants’ motion for a stay is dismissed.
“Sean Harrington”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-666-07
STYLE OF CAUSE: Sandra Jackson & Tanya Avianne Aberdeen v.
The Minister of Citizenship and Immigration
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: February 21, 2007
REASONS FOR ORDER: HARRINGTON J.
APPEARANCES:
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Mr. Joel Etienne
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Ms. Anshumala Juyal |
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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Joel Etienne Barrister and Solicitor Toronto, Ontario
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John H. Sims, Q.C. Deputy Attorney General of Canada |