Ottawa, Ontario, March 25, 2008
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
I. Introduction
[1] The Applicant, Mr. Nur Mohamed Jama, had a fair and full opportunity to present evidence and arguments with respect to the Danger Opinion. It took approximately two years to make the Danger Determination. The Applicant made three different sets of submissions, July 2005, August 2006 and March 2007; however, he made a conscious choice not to challenge the Danger Opinion, rendered on June 11, 2007, although he knew that his removal was imminent. In fact, the Applicant was scheduled to be removed in July 2007, and yet, he still did not challenge the Danger Opinion. The only reason he was not removed, in July of 2007, is the airline’s refusal to transport deportees to Somalia. No efforts to challenge the Danger Opinion, until now, were made by the Applicant.
[2] The Danger Opinion is based on the Minister’s Delegate opinion, dated June 11, 2007 (excerpts annexed to this Judgment).
[3] There is no pending underlying application within which this stay motion can be properly brought. Furthermore, the Applicant has failed to show that the test for granting an extension of time has been met. To obtain an extension of time, an Applicant must demonstrate:
i. a continuing intention to pursue the application;
ii. an arguable case for leave has been shown - application has some merit
iii. no prejudice arises from the delay; and
iv. a reasonable explanation for the delay exists.
(Canada (Attorney General) v. Hennelly (1999), 244 N.R. 399 (F.C.A.); Grewal v. Canada (Minister of Employment Immigration), [1985] 2 F.C. 263 (F.C.A.); Marshall v. Canada, 2002 FCA 172.)
[4] The Applicant has acknowledged a lack of the continuing intention to pursue the application. Moreover, he has failed to show that an arguable case for leave has been shown, and that a reasonable explanation exists for the delay. As indicated, the Applicant has been aware of his imminent removal for duration of 8-9 months. There has been no material change in country conditions in the part of Somalia to which the Applicant is being removed; in any case, the Danger Opinion would still stand, as it was made before the alleged changes, and thus its validity would not be affected in any event. Serious prejudice would arise to the Respondent if this motion were to be granted in the circumstances of this case. The Applicant has been held in detention for over two years awaiting removal. Only in the last few days has the Applicant come forward with his intention to challenge the Danger Opinion determination.
[5] The Applicant has not provided any reliable evidence that would establish new risk issues for regarding his return to Somaliland. The Applicant has a family there, including his parents and many siblings. Moreover, it appears that his previous wives/spouses reside there with more than four of his children (the exact number of ex and present wives/spouses and children in Hargeisa is not entirely clear on the record).
[6] The Applicant has had the existing mental health disorder for many years. Throughout this period he has consistently shown that he has not been compliant in taking his medication. While he has been incarcerated for over two years, prior to that time, the efforts of the Toronto Bail program failed to yield any success in having the Applicant comply with the treatment regiment required to keep him under control. This fact scenario, in part, formed the basis of the Danger Opinion. Accordingly, the availability of medications and/or psychiatric treatment is of no consequence to a person who has shown extensive reluctance to benefit from same.
[7] The Applicant’s interests do not outweigh the public interest in executing removal orders as soon as reasonably practicable in accordance with ss. 48(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). The Minister’s obligation under ss. 48(2) of the IRPA 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.
[8] In considering the balance of convenience, the Court must consider that the Applicant is a danger to the public in Canada. If a person is a danger to the public in Canada or has committed crimes against humanity, the public interest and the balance of convenience favours not staying removal from Canada. (Choubaev v. Canada (Minister of Citizenship and Immigration), 2002 FCT 816; Grant v. Canada (Minister of Citizenship and Immigration), 2002 FCT 141.)
[9] As stated by Justice Judith Snider in Chen v. Canada (Minister of Citizenship and Immigration), 2004 FC 464, [2004] F.C.J. No. 567 (QL): “a clear starting point for viewing public interest in this case is the objective of the legislative framework in question.” While acknowledging that Canada’s commitment to non-refoulement is one of the objectives of the IRPA, an even more pressing objective, which impacts everyone living in Canada, is the maintenance and protection of the security of Canadian society and the integrity of Canada’s immigration system.
[10] The balance of convenience favours the Minister, in that, the Applicant’s removal would satisfy the objectives, as set out in the IRPA, of establishing fair and efficient procedures to maintain the integrity of the Canadian refugee system, protecting the safety and security of Canadian society, and promoting international justice and security by denying access to Canadian territory to persons who are security risks or serious criminals. (IRPA, ss. 3(2)(e), (g) and (h).)
II. Background
[11] The facts set out in the affidavit of Ms. Karen Miranda, the email explanation received from Officer, Mr. Bob Hickson, the Danger Opinion, dated June 11, 2007, and the extensive materials filed by the Applicant are self explanatory. (The annexed document highlights elements therein.)
III. Issue
[12] Has the Applicant satisfied all three parts of the conjunctive test for a stay?
IV. Analysis
[13] The test for the granting of an Order staying execution of a removal order, is:
a) whether there is a serious question to be determined by the Court;
b) whether the party seeking the stay would suffer irreparable harm if the stay were not issued; and
c) whether, on the balance of convenience, the party seeking the stay will suffer the greater harm from the refusal to grant the stay.
(Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.); RJR- MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311.)
[14] The test for a stay is conjunctive and the Applicant must therefore satisfy each branch of this tri-partite test.
Serious Issue
[15] As the Applicant has failed to establish a serious issue, this motion ought to be dismissed on this basis alone. This stay motion attempts to put into issue a Danger Opinion which was rendered 8-9 months previously. The Applicant made a conscious choice not to challenge the Danger Opinion, and he is now irrevocably out of time. In the circumstances, there is no underlying application within which this stay motion can be heard.
[16] On June 11, 2007, a Minister’s Delegate issued an opinion, pursuant to paragraph 115(2)(a) of the IRPA that the Applicant constitutes a present and future danger to the public in Canada. The decision was prepared in accordance with Article 33(2) of the United Nations Convention on the status of refugees, which permits the host country to remove a refugee who has been convicted of a particularly serious crime and who constitutes a danger to the country. In addition to the danger assessment, the opinion includes a consideration of the Applicant’s risk upon return to Somaliland in accordance with the Supreme Court of Canada decision in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, and of humanitarian and compassionate elements. This consideration addressed his personal circumstances. (Reference is also made to the Danger Opinion.)
[17] There has not been a material negative change in country conditions in the region to which the Applicant is being removed. (IRPA, s. 112 and s. 115; Ragupathy v. Canada (Minister of Public Safety and Emergency Preparedness), 2006 FC 1370 (T.D.), at paras. 15-22.)
Irreparable Harm
[18] The onus is on the Applicant to demonstrate, through clear and convincing evidence of irreparable harm, that the extraordinary remedy of a stay of removal is warranted. Irreparable harm must constitute more than a series of possibilities and cannot be simply based on assertions and speculation. (Atwal v. Canada (Minister of Citizenship and Immigration), 2004 FCA 427.)
[19] The Supreme Court of Canada has held that such harm must be done to the Applicant, not to a third party. (RJR-MacDonald Inc., above, at para. 58.)
[20] The Federal Court jurisprudence also establishes that irreparable harm must be something more than the inherent consequences of deportation. As Justice Denis Pelletier stated, in Melo v. Canada (Minister of Citizenship and Immigration) (2000), 188 F.T.R. 39:
[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.
.
[21] The Applicant’s extensive family lives in the area to which the Applicant is being removed. During his extensive past in the U.S. and Canada, he has not been compliant with appropriate treatments/medications. Accordingly, the availability of same is immaterial to this Applicant as the state cannot force compliance. Contrary to the vague representations by the Applicant, regarding the treatment of mentally ill individuals, his other mentally ill siblings are institutionalized, and not “tied to a tree”. As the Applicant has failed to satisfy the test for irreparable harm, this motion ought to be dismissed on this basis alone.
Balance of Convenience
[22] It is trite law that the public interest must be taken into consideration when evaluating this last criterion. (RJR-MacDonald Inc., above; Blum v. Canada (Minister of Citizenship and Immigration) (1994), 90 F.T.R. 54 (F.C.T.D.), by Justice Paul Rouleau.)
[23] In this context, the very recent statements of the Supreme Court of Canada in Medovarski v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 539, concerning the intent of the legislation. The Right Honourable Berverley McLachlin, Chief Justice of Canada, speaking for a unanimous Court, stated:
[9] The IRPA enacted a series of provisions intended to facilitate the removal of permanent residents who have engaged in serious criminality. This intent is reflected in the objectives of the IRPA, the provisions of the IRPA governing permanent residents and the legislative hearings preceding the enactment of the IRPA.
[10] The objectives as expressed in the IRPA indicate an intent to prioritize security. This objective is given effect by preventing the entry of applicants with criminal records, by removing applicants with such records from Canada, and by emphasizing the obligation of permanent residents to behave lawfully while in Canada. This marks a change from the focus in the predecessor statute, which emphasized the successful integration of applicants more than security: e.g. see s. 3(1)(i) of the IRPA versus s. 3(j) of the former Act; s. 3(1)(e) of the IRPA versus s. 3(d) of the former Act; s. 3(1)(h) of the IRPA versus s. 3(i) of the former Act. Viewed collectively, the objectives of the IRPA and its provisions concerning permanent residents, communicate a strong desire to treat criminals and security threats less leniently than under the former Act.
…
[12] In introducing the IRPA, the Minister emphasized that the purpose of provisions such as s. 64 was to remove the right to appeal by serious criminals. She voiced the concern that "those who pose a security risk to Canada be removed from our country as quickly as possible".
13 In summary, the provisions of the IRPA and the Minister's comments indicate that the purpose of enacting the IRPA, and in particular s. 64, was to efficiently remove criminals sentenced to prison terms over six months from the country. Since s. 196 explicitly refers to s. 64 (barring appeals by serious criminals), it seems that the transitional provisions should be interpreted in light of these legislative objectives. (Emphasis added.)
[24] The balance of convenience heavily favours the Respondent in the circumstances. The Minister is seeking to protect the Canadian public and, with that objective in mind, is carrying out his statutory duty. As Justice William P. McKeown stated, in Gomes v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 199 (QL):
[7] With respect to the balance of convenience test, I am in agreement with the reasoning of Rothstein J. in Mahadeo v. Canada (Secretary of State), October 31, 1994, (unreported), Court File IMM-4647-94 (F.C.T.D) [Please see [1994] F.C.J. No. 1624]. In that case, Rothstein J. stated that when the applicant is guilty of welfare fraud or has been convicted of a criminal offence in Canada, the balance of convenience weighs heavily in favour of the respondent. In this case the applicant was convicted of assault causing bodily harm, which I find to outweigh any consideration of the emotional devastation of the applicant's family. I therefore find that the balance of convenience in this case lies with the respondent.
[8] Given my negative findings on the first two elements of the tripartite test, I do find it necessary to consider the issue of irreparable harm. (Emphasis added.)
[25] The public interest is to be taken into account and weighed together with the interests of private litigants. 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. (Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110, at para. 146.)
[26] In Dugonitsch v. Canada (Minister of Employment Immigration), [1992] F.C.J. No. 320 (F.C.T.D.), Justice Andrew MacKay set out the considerations pertinent to assessing balance of convenience:
Absent evidence of irreparable harm, it is strictly speaking unnecessary to consider the question of the balance of convenience. Nevertheless, it is useful to recall that in discussing the test for a stay or an interlocutory injunction in the Metropolitan Stores case Mr. Justice Beetz stressed the importance of giving appropriate weight to the public interest in a case where a stay is sought against a body acting under public statutes and regulations which have not yet been determined to be invalid or inapplicable to the case at hand. That public interest supports the maintenance of statutory programs and the efforts of those responsible for carrying them out. Only in exceptional cases will the individual’s interest, which on the evidence is likely to suffer irreparable harm, outweigh the public interest. (Emphasis added.)
[27] The comments of Justice John Maxwell Evans in Selliah v. Canada (Minister of Citizenship and Immigration), 2004 FCA 261, are also applicable:
[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. (Emphasis added.)
[28] Section 48 of the IRPA requires the Minister to remove persons, such as the Applicant, as soon as reasonably practicable.
[29] In all of these circumstances, staying the Applicant’s removal would undermine the fairness, integrity, and confidence in Canada’s system of immigration control; therefore, the balance of convenience favours the Respondent.
[30] The Applicant seeks 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. In Townsend, Justice Marshall Rothstein, found that the balance favoured the Minister given the “appellant’s long criminal record and current costly incarceration outweigh the appellant’s lengthy residence in Canada”. (Townsend v. Canada (M.C.I.) (25 June 2004), Doc. No. A-167-04, at para. 6; RJR-MacDonald Inc., above, Blum, above; Tesoro v. Canada (Minister of Citizenship and Immigration), 2005 FCA 148; Thanabalasingham v. Canada (Minister of Public Safety and Emergency Preparedness), 2006 FC 486.)
[31] As stated by Justice John Sopinka in Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711:
[32] In the within motion, the Applicant has not demonstrated that the balance of convenience favours the non-application of the law nor outweigh the public interest; therefore, the risk assessment performed in the context of the Danger of Opinion does not fall “within a range of possible acceptable outcomes which are defensible in respect of the facts and the law”, as specified in Dunsmuir v. New Brunswick, 2008 SCC 9.
[33] In considering the balance of convenience, the Court must consider whether the Applicant is a danger to the public in Canada. If a person is a danger to the public in Canada, the public interest and the balance of convenience favours not staying removal from Canada. (Choubaev, above; Grant, above.)
[34] As stated by Justice Snider in Chen, above, “a clear starting point for viewing public interest in this case is the objective of the legislative framework in question.” While acknowledging that Canada’s commitment to non-refoulement is one of the objectives of the IRPA, an even more pressing objective, which impacts everyone living in Canada, is the maintenance and protection of the security of Canadian society and the integrity of Canada’s immigration system.
[35] The balance of convenience favours the Minister, in that, the Applicant’s removal would satisfy the objectives, as set out in IRPA, of establishing fair and efficient procedures to maintain the integrity of the Canadian refugee system, protecting the safety and security of Canadian society, and promoting international justice and security by denying access to Canadian territory to persons who are security risks or serious criminals. (IRPA, ss. 3(2)(e), (g) and (h).)
V. Conclusion
[36] The Applicant had a fair and full opportunity to present evidence and arguments with respect to the Danger Opinion. He made a conscious choice not to challenge the Danger Opinion, although he knew that his removal was imminent. He was scheduled to be removed in July 2007, and, yet, he still did not challenge the Danger Opinion. The only reason he was not removed in July of 2007, is the airline’s refusal to transport him. He has known all along that he was to be removed as soon as possible, yet he made no efforts to challenge the Danger Opinion, until now. There is no pending underlying application, no pending motion for extension of time to challenge the Danger Opinion, and no prospects of being granted the extension of time. Moreover, he has not provided any reliable evidence that would establish new risk issues for regarding his return to Somaliland, an entirely separate region of Somalia. In these circumstances, in the present case, the Applicant’s interests do not outweigh the public interest in executing removal orders as soon as reasonably practicable in accordance with ss. 48(2) of the IRPA. The Minister’s obligation under ss. 48(2) of the IRPA 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. (Selliah, above, at para. 22.)
ORDER
THIS COURT ORDERS that the application for a stay of removal from Canada, be dismissed.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1347-08
STYLE OF CAUSE: NUR MOHAMED JAMA
v. THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: March 25, 2008 (By Teleconference)
APPEARANCES:
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Ms. Carol Simone Dahan
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Ms. Maria Stefanovic
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SOLICITORS OF RECORD:
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CAROL SIMONE DAHAN Barrister and Solicitor Toronto, Ontario
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JOHN H. SIMS, Q.C. Deputy Attorney General of Canada
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