Date: 20040623
Docket: IMM-5115-04
Toronto, Ontario, June 23rd, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
YAN HUA LI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(Delivered from the bench and written for clarification)
[1] Ms. Li, a citizen of China, engineer by training and adherent of the Tian Dao form of Buddhism, seeks the stay of a removal order now scheduled to be executed on July 18, 2004. The motion was filed prematurely on June 7th together with an application for leave and for judicial review of a negative Pre-Removal Risk Assessment ("PRRA"). No removal order had been issued as of that date. This matter was adjourned from June 14th to the 21st to allow for the initiation of the removals process to catch up to the motion. The removal interview took place on June 16th and the direction to report for removal was issued on June 17th.
[2] The respondent raised several preliminary matters for consideration before the merits of the stay application were addressed. First it was requested that the Court order that the style of cause be amended to replace "Minister of Citizenship and Immigration" with "Solicitor General of Canada" as the proper responding party and that is so ordered. The respondent also argued that the motion remained premature as the enforcement officer had not been asked to defer removal. There being nothing on the record to indicate any grounds for the enforcement officer to exercise his limited discretion to defer removal, I saw no reason not to proceed with the motion.
[3] More substantively, the respondent raised an objection to the stay motion on the ground that the underlying application for leave and for judicial review was out of time. The PRRA, issued on March 5, 2004, was communicated to the applicant on May 10, 2004. Thereafter, she had fifteen days in which to bring her application for leave and for judicial review. That application was filed on June 7th, twelve days out of time by my calculation. An application for an extension of time was made at the same time.
[4] The respondent relies on the decision of the Federal Court of Appeal in Canada (Attorney General) v. Hennelly, [1999] F.C.J. No. 846, (1999) 244 N.R. 399 ("Hennelly") in which principles governing the exercise of discretion to grant an extension of time are set out. In order to receive an extension, an applicant must demonstrate:
1. a continuing intention to pursue his or her application;
2. that the application has some merit;
3. that no prejudice to the respondent arises from the delay; and
4. that a reasonable explanation for the delay exists.
[5] The respondent contends that on this standard the applicant should not be granted an extension of time to file and without a valid underlying application, had no claim to a stay of execution of the removal order.
[6] The respondent argued that the applicant has not demonstrated a continuing intention to pursue her application and has provided no reasonable explanation for the delay. The applicant has not been diligent in seeking relief through the avenues open to her. The applicant originally arrived in Canada in 2000 on a business visa and delayed ten days before filing a refugee claim. That claim was denied in February 2002 and a subsequent application to the Court for leave and for judicial review was dismissed in July 2002. The applicant did not apply for a risk assessment under the former Immigration Act and had brought her application for landing on Humanitarian and Compassionate grounds and the PRRA application in November 2003 and January 2004 respectively, only when it became apparent that the respondent would seek her removal.
[7] The respondent cites the recent decision of Akpataku v. The Minister of Citizenship and Immigration, [2004] FC 698, in which the Hennelly principles were applied to deny an extension of time to file a leave application in the context of a stay motion.
[8] The applicant argued that she had a continuing intention to pursue her application but did not fully understand the nature of the proceedings, was distraught and needed time to make financial arrangements and find counsel.
[9] On the question of whether the application has "some merit" in accord with the second branch of the Hennelly test, the respondent argued that there is nothing in the motion record filed by the applicant to indicate that the PRRA officer had erred. Hence there was no "serious issue" or "arguable case" which would warrant the granting of leave or could ultimately lead to a finding of reviewable error.
[10] The applicant's oral submissions contended that the PRRA officer erred in not accepting that she was at risk of persecution in China for practising the Tian Dao religion and more specifically, that the officer erred in failing to give sufficient weight to her documentary evidence, including a notice from her former employer that she was dismissed for practising an illegal religion. That notice had been found to be not credible by the board at her refugee hearing in 2002. The applicant offered as new evidence, a police summons purportedly issued in April 2003, that was submitted in the original Chinese and an uncertified English translation.
[11] The PRRA officer gave extensive reasons analysing the situation in China with respect to the practise of Tian Dao and assessing the risks which the applicant might face if she continued to practise her religion upon being returned to that country. In my view, the officer properly considered all of the evidence before her including the documentary evidence submitted by the applicant. She was entitled to question its credibility. With respect to the new document, there was no reasonable explanation provided by the applicant for why the Chinese police would remain interested in her, three years after she had left that country, when there was no evidence that she had been of interest to them when she resided in China. Further there was insufficient objective evidence on the record that other Tian Dao adherents were being persecuted at the present time in China.
[12] In the result, I was not satisfied that the applicant would meet the "some merit" element of the Hennelly test for an extension of time in which to seek leave for judicial review. Without such an extension, there would be no "serious issue" before the Court. Such was the conclusion reached by MacKay J. in Shellner v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 554 on a similar stay motion. Justice MacKay, however, went on to consider the stay motion before him on the assumption that a serious issue had been raised. That appeared to me to be a prudent course of action to follow.
[13] On the assumption that there is a serious issue to be tried or arguable case arising from the PRRA officer's decision, the evidence on the record does not support the conclusion that the applicant would suffer irreparable harm if returned to China. In my view, there is no reason to interfere with the Minister's exercise of her duty to enforce the Act and the balance of convenience rests with the respondent. Thus, the applicant has not satisfied the second and third elements of the test in Toth v. Canada (M.E.I.) (1988), 86 N.R. 302 (F.C.A) and this application is dismissed.
ORDER
THIS COURT ORDERS that:
14. the style of cause is amended to remove the Minister of Citizenship and Immigration and to add the Solicitor General of Canada as the respondent in this proceeding.
15. the motion to stay the removal order scheduled to be executed on July 18, 2004 is dismissed.
" Richard G. Mosley"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5115-04
STYLE OF CAUSE: YAN HUA LI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 21, 2004
REASONS FOR ORDER
AND ORDER BY: MOSLEY J.
APPEARANCES:
Mr. Peter Wuebbolt FOR THE APPLICANT
Ms. Margherita Braccio FOR THE RESPONDENT
SOLICITORS OF RECORD:
Salvatore Campese
Barrister and Solicitor
Toronto, Ontario FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT
FEDERAL COURT
Date: 20040623
Docket: IMM-5115-04
BETWEEN:
YAN HUA LI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER