| Federal Court
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|
Cour fédérale
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BETWEEN:
Applicant
and
AND IMMIGRATION
Docket: IMM-2451-09
BETWEEN:
SHAWN FORDYCE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
Introduction and Background
[1] On Friday evening, May 15, 2009, I heard together two applications for a stay of the Applicants who are citizens of Guyana, whose deportation was scheduled for the next day, Saturday, May 16, 2009, at 10:00 a.m. I issued the two stays and here are the reasons why.
Facts
[2] Cassandra Griffith is 18 years old and Shawn Fordyce is 25 years old. They are cousins. They arrived at
[3] Each of them saw a different Custom Officer who referred them for questioning by an Immigration Officer who suspected their passports were false. After initially lying about the authenticity of their passports and about not knowing each other, they admitted their passports were false, that they were citizens of
[4] At this point Miss Griffith told the Officer she was scared to return to
[5] For his part, Mr. Fordyce, in his affidavit in support of the stay, says the Officer asked him if he was claiming “Refugee Protection”, to which he answered no because he did not understand the term refugee to be synonymous with “asylum”. In his affidavit, he says he is under threat from his rich and influential stepfather, who eventually pulled a gun on him when he tried to intervene when his stepfather was abusing his mother.
[6] The Officer wrote separate section 44 reports to the Minister’s delegate at the airport. He recommended an exclusion order be issued against each Applicant. Before the Minister’s delegate issued the exclusion orders, he specifically asked each of the Applicants whether they wanted to claim
[7] In her affidavit, Miss Griffith says, after the exclusion order was made, she “afterwards … asked for protection in
[8] Mr. Fordyce is more direct in his affidavit. At paragraph 7, he states that on May 13, 2009 he was interviewed by an Immigration Officer “where I then asked for protection in
Mr. Amana, dated May 13, 2009, faxed to the CBSA Supervisor in
[9] The record before me indicates that, on May 13, 2009, Miss Griffith’s former counsel filed an application for leave and judicial review challenging the exclusion order. That record also indicates, on May 13, 2009, Mr. Amana advised CBSA he was Miss Griffith’s new solicitor on the file. On May 15, 2009, he also launched a stay application on her behalf. His notice of motion focuses on the fact her former counsel asked for an administrative stay pending a PRRA assessment, which the Officer has neglected or omitted to grant. Mr. Amana states, in making his decision, the Officer denied the Applicant the right to a due process available at law – a right to a Pre-Removal Risk Assessment since the Applicant had alleged a risk of return.
The Statutory Scheme
[10] The Immigration and Refugee Protection Act (IRPA) is clear on the following points:
1. Subsection 44(1) of the IRPA provides an Immigration Officer who is of the opinion a foreign national in Canada is inadmissible may prepare a report to the Minister (or his delegate) with subsection 44(2), stating if the Minister is of the opinion the report is well founded, the Minister may make a removal order in the circumstances provided for in the Regulations.
2. Paragraph 228(1)(c)(iii) of the Immigration and Refugee Protection Regulations (IRPR) stipulates the Minister shall not refer for hearing to the Immigration Division a well founded section 44 report in the case of a foreign national who does not hold a required visa, but rather shall make an exclusion order.
3. Subsection 99(3) of IRPA bars a person inside Canada from making a refugee claim if that person is subject to a removal order.
4. Section 166 of IRPR is entitled: “Application at port of entry”. It says: “An application for protection by a foreign national against whom a removal order is made at a port of entry as a result of a determination of inadmissibility on entry into Canada must, if the order is in force, be received as soon as the removal order is made. … For greater certainty, the application does not result in a stay of the removal order.”
Analysis
[11] It is trite law an Application for a stay of a removal order must establish three conjunctive elements: (1) serious issue to be tried; (2) irreparable harm; and, (3) balance of convenience.
a) Serious issue
[12] Counsel for the Applicants argued a serious issue arises because, under section 112 of IRPA, a person in
[13] The PRRA scheme, under IRPA, is to the effect, a risk assessment should be conducted before a removal is enforced. Sections 160 and 166 of the IRPR pose a particular challenge when the expulsion order is made at a point of entry.
[14] There is no evidence before me the Applicants were offered the opportunity to make a PRRA application which is a different process than making a refugee claim.
[15] Miss Griffith apparently told the Immigration Officer she was scared to return to
[16] In any event, counsel for the Applicant specifically asked for PRRA evaluation on May 13, 2009. It appears from a letter dated May 14, 2009, which is not in the record, faxed to former counsel for Miss Griffith, an official at CBSA or CIC said a PRRA application could be made but removal would not be deferred.
[17] I see the following serious issues arising out of the application for leave:
In the circumstances of this case, was there a breach of section 166 of the IRPR when the Applicants were not offered a PRRA application?
Were the expulsion orders reasonable in the circumstances particularly in the case of Miss Griffith, who seemingly stated she was afraid of returning to
In the circumstances of this case, did the authorities act precipitously in scheduling their return for the following Saturday considering they were going to be detained and did this action cause them to deny the Applicants specific request for PRRA applications?
b) Irreparable harm
[18] In my view, irreparable harm has been met and is not speculative. The irreparable harm flows from the fact the Applicants have not had their risk of return assessed. In the normal course, such return without a risk assessment is a breach of the statutory scheme laid out in IRPA.
[19] Having said this, I am very aware that the Applicants’ individual stories may be completely fabricated, but I am not in a position to assess their credibility. That is the task of a PRRA Officer, who will interview them.
c) The balance of convenience
[20] In the circumstances, the balance of convenience favours the Applicants.
[21] A copy of these reasons is to be placed in each file.
“François Lemieux”
_________________________________
Judge
May 28, 2009
FEDERAL COURT
SOLICITORS OF RECORD
DOCKETS: IMM-2412-09 and IMM-2451-09
STYLE OF CAUSE: CASSANDRA
CITIZENSHIP AND IMMIGRATION
AND BETWEEN
SHAWN FORDYCE v. THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING:
APPEARANCES:
| Idorenyin E. Amana, Esq.
|
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| Lisa Maziade
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SOLICITORS OF RECORD:
| Idorenyin E. Amana, Esq.
Solicitor and Advocate
|
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| John H. Sims, Q.C.
Deputy Attorney General of
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FOR THE RESPONDENT
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