Date: 20060227
Docket: IMM-884-06
Citation: 2006 FC 260
Vancouver, British Columbia, Monday, the 27th day of February, 2006
Present: THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
ARMANDO ANTONIO DIAZ ARROYO
VERONICA GONZALES CASTREJON
ANTONIO ROBIN DIAZ GONZALES
IVAN JOSHUA DIAZ GONZALES and
VERONICA MARLENE DIAZ GONZALES
Applicants
- and -
THE MINISTER FOR PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
OVERVIEW
... 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 is reasonably practicable: IRPA (Immigration and Refugee Protection Act), 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.
(Selliah v. Canada (M.C.I.), 2004 FCA 261.)
BACKGROUND
[1] The Applicants, the Diaz Arroyos, are Mexican citizens who are subject to enforceable Deportation Orders. They came to Canada two years ago and made refugee claims. Both the Immigration and Refugee Board and a Pre-Removal Risk Assessment Officer have found that the Diaz Arroyos are not at risk in Mexico. In October 2005, the Diaz Arroyos may have submitted an H & C application through their counsel at the time. This matter was adjourned from February 20, 2006, until February 28, 2006, to ensure that the Applicants would make the necessary arrangements simply to clarify the situation.
[2] On February 7, 2006, a Canada Border Services Agency ("CBSA") Officer refused a request made by the Diaz Arroyos to defer their removal from Canada until after the H & C application was determined. The Diaz Arroyos now seek an interim injunction prohibiting their removal until after the Court has determined their application for leave and for judicial review of the CBSA Officer's decision; however, they have failed to establish any of the elements required by the Court to grant such an injunction, and their motion is be dismissed.
FACTS
[3] The Respondent, the Minister, relies on the facts as set out in the CBSA Officer's written reasons, as well as the exhibits to the Affidavit of Kristina Strle, sworn February 16, 2006 and filed herein.
[4] Armando Diaz Arroyo and Veronica Gonzales Castrejon are husband and wife, and they have three school-age children, Antonio, Ivan and Veronica. All five Diaz Arroyos are citizens of Mexico.
[5] On June 1, 2005, the Immigration and Refugee Board ("IRB") determined that the Diaz Arroyos are not Convention refugees or persons in need of protection. The Board found that the Diaz Arroyos' refugee claim was not credible. In its written reasons, the IRB noted that, since their arrival in December 2004, the Diaz Arroyos had given immigration officials and the IRB four different versions of why they sought refugee status in Canada (IRB Reasons, Affidavit of K. Strle, Exhibit "B").
[6] On August 29, 2005, this Court dismissed the Diaz Arroyos' application for leave and for judicial review of the IRB's decision on the basis that the Diaz Arroyos had failed to perfect that application (Court Order, Affidavit of K. Strle, Exhibit "C").
[7] In August 2005, the Diaz Arroyos' then lawyer, Nicole Hainer, prepared the Diaz Arroyos' application for permanent residence and humanitarian and compassionate request for an exemption under section 25 of the Immigration and Refugee Protection Act ("H & C Application"). The Diaz Arroyos paid Ms. Hainer $1,550, in trust, to be paid to the Government as the application fee when the H & C Application was filed. (Letter from N. Hainer, Applicant's Motion Record ("AMR"), p. 47-49.)
[8] The Diaz Arroyos' H & C Application was completed by Ms. Hainer in October 2005. However, Ms. Hainer was not certain that the H & C Application was sent to the Department of Citizenship and Immigration ("CIC"). (Letter from N. Hainer, AMR, p. 48.)
[9] On October 18, 2005, the Diaz Arroyos applied for protection by way of a Pre-Removal Risk Assessment ("PRRA"). (PRRA Application, Affidavit of K. Strle, Exhibit "D".)
[10] On January 18, 2006, a PRRA Officer refused the Diaz Arroyos' PRRA Application. The PRRA Officer found that the Diaz Arroyos are not at risk in Mexico. (PRRA Decision and Reasons, Affidafit of K. Strle, Exhibit "E".)
[11] On February 1, 2006, at the Diaz Arroyos' request, the CBSA Officer checked CIC's computer system to determine the status of the H & C Application. He did not find a record of the H & C Application in CIC'S computer system. (Letter from N. Hainer, AMR, p. 48.)
[12] On February 6, 2006, Ms. Hainer wrote to CBSA requesting that the removal of the Diaz Arroyos from Canada be deferred until after the H & C Application was determined. Ms. Hainer stated, inter alia:
· She did not know whether the H & C Application had actually been sent to CIC;
· She intended to re-submit the H & C Application; and
· The Diaz Arroyos' removal should be deferred to enable the children to complete their school year. (Letter from N. Hainer, AMR, p. 47-49)
[13] On February 7, 2006, the CBSA Officer made a decision not to defer the Diaz Arroyos' removal from Canada ("Deferral Decision"). In his written reasons for his Deferral Decision, the CBSA Officer explicitly considered the Diaz Arroyos' submissions with respect to the status of the H & C Application, their family circumstances, and the effect of removal on the children's schooling. (CBSA Officer Decision and Reasons, AMR, p. 50.)
[14] On February 15, 2006, the Diaz Arroyos filed an application for leave and for judicial review of the CBSA Officer's Decision (the "Leave Application").
[15] The Diaz Arroyos are scheduled to be removed from Canada on the next available date subject to travel arrangements.
ISSUES
[16] This is a motion for an interlocutory injunction under section 18.2 of the Federal Courts Act, R.S.C. 1985, c. F-7, staying the execution of the Removal Orders until after the Leave Application has been determined. This Court will not grant an interlocutory injunction unless the Applicant establishes all three of the following elements:
(a) there is a serious issue to be tried in the underlying Leave Application;
(b) the Applicant will suffer irreparable harm unless the injunction is granted; and
(c) the balance of convenience, in terms of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction pending a decision on the merits, favours the Applicant.
(Toth v.Canada (M.C.I.) (1998, 86 N.R. 302 (F.C.A.))
[17] The Diaz Arroyos have not established any of the three elements of the test.
ARGUMENT
No Serious Issue in the Leave Application
[18] In their Leave Application, the Diaz Arroyos are challenging the CBSA Officer's decision not to defer their removal from Canada. It is well-established that the standard that the Applicant must meet to demonstrate a serious issue is higher where the decision challenged is a decision not to defer removal. The remedy being sought on the stay motion is the same remedy that was sought from the officer and that is being sought on the judicial review application, namely deferral of the removal of the Applicant from Canada. (Williams v. Canada (M.C.I.) 2004 FC 683; Morello v. Canada (M.C.I.), (1 November 2005, Federal Court Registry No. IMM-6552-05.)
[19] In the case at hand, the Diaz Arroyos' Leave Application is devoid of merit, as they have failed to establish a basis for judicial review of the CBSA Officer's Deferral Decision.
[20] It is trite law that a removals officer has limited discretion to defer the removal of a person who subject to an enforceable removal order. If there is a valid and enforceable removal order, immediate removal should be the rule and deferral the exception. Furthermore, a deferral decision ought only to be set aside if it was patently unreasonable. (Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 48; Padda v. Canada (M.C.I.) 2003 FC 1081; Hailu v. Canada (Sol. Gen.), 2005 FC 229.)
[21] Moreover, a removals officer does not have to defer a person's removal simply because that person intends to file, or has filed an H & C application. Furthermore, the removals officer is not obligated to evaluate the merits of any outstanding H & C application or conduct his or her own assessment of the possible H & C factors (Padda, supra; Morello, supra).
[22] The CBSA Officer's Deferral Decision was not patently unreasonable. He carefully considered the evidence before him, including the Diaz Arroyos' family circumstances, their submissions with respect to the H & C Application which may have been filed in October 2005, and their submissions with respect to the effect of removal on the children's schooling, and found that he was not satisfied that these circumstances warranted a deferral (Deferral Decision and Reasons, AMR, p. 50).
[23] In their motion record, the Diaz Arroyos rely on Simoes and Medawatte. Both cases are distinguishable from the case at hand. In Simoes v. Canada (M.C.I.), [2000] F.C.J. 936, Mr. Justice Nadon noted that a removal officer may consider "pending H & C applications that were brought in a timely basis but have yet to be resolved due to backlogs in the system."
[24] In Medawatte v. Canada (M.P.S.E.P.), [2005] F.C.J. No. 1672, the applicants' erroneously unfiled H & C application was supposed to have been filed in July 2004, 15 months before the deferral request was made. In granting the stay, Mr. Justice Harrington relied on Simoes and noted that, "the H & C application would have been decided by now."
[25] The facts of the case at hand are very different. Even if the Diaz Arroyos' H & C Application was filed, it was filed in October 2005, after the Removal Orders against the Diaz Arroyos were in force, and only four months before the Diaz Arroyos made their deferral request. It could not be considered "an H & C application brought on a timely basis" that remains unresolved due to "backlogs in the system."
[26] In these circumstances, it was not patently unreasonable for the CBSA Officer to find that deferral of the Diaz Arroyos was not warranted.
[27] There is no serious issue in the Leave Application; therefore, the Diaz Arroyos have failed to meet the first prong of the test for a stay of removal.
No Irreparable Harm if the Applicants are Returned to Mexico
[28] The Diaz Arroyos must establish that they will be irreparably harmed if their removal to Mexico is not stayed. It is trite law that harm which is speculative or is inherent in the removal process is not "irreparable" (Atwal v. Canada (M.C.I.), 2004 FCA 427; Selliah v. Canada (M.C.I), 2004 FCA 261).
[29] None of the harm alleged by the Diaz Arroyos meets the threshold for "irreparable harm" warranting an interim injunction.
[30] First, the Diaz Arroyos' submission that their H & C Application cannot be determined if they are removed from Canada is without merit on the facts. The Diaz Arroyos' argument on this point rests on the assumption that they must re-submit the $1,550 H & C Application fee; however, their own evidence contradicts this.
[31] Mr. Diaz Arroyo's testimony in his affidavit is that he paid their lawyer, Ms. Hainer, $1,550, in trust, for the H & C Application fee. That fee is either still in trust, or it has been paid to the bank on account of the H & C Application fee. If the latter is the case, then Ms. Hainer will have a fee receipt and/or trust ledger record indicating the date and bank to which the fee was paid. Thus, it was made possible to the Diaz Arroyos to send to CIC another copy of their H & C Application, along with written confirmation of the date and bank to which the fee was paid (Fee Receipt, AMR, p. 30).
[32] As per information received in open court from both counsel on February 27, 2006, Ms. Hainer has now resubmitted the fee in respect of the H & C application due to an inadvertence which had occurred outside of her knowledge as well as that of the CIC; and, a valid H & C application has now been transmitted to the CIC and therefore, can be processed, that would not have been the case had the Diaz Arroyos left Canada prior to the H & C application submission in due form.
[33] Second, the Diaz Arroyos' allegation that possible disruption to the children's schooling constitutes irreparable harm is without merit in law or fact. It is well-established that the kinds of hardship typically occasioned by removal do not constitute irreparable harm. Thus, this Court has held that disruption of schooling is not irreparable harm. (Selliah, supra; Beck-Ne v. Canada (M.C.I.), (11 December 2002), Federal Court Registry No. IMM-5943-02; Strachan v. Canada (M.C.I.), (18 November 1998), Federal Court Registry No. IMM-5846-98.)
[34] Furthermore, in the case at hand, there is evidence that the Diaz Arroyo children likely will be able to adjust to disruption in their schooling. Two years ago, during the 2004 Christmas season, they left their home and school in Mexico and came to Canada. The letter from the Principal of the Diaz Arroyo children's school confirms that the children were able to adjust to this change, and have integrated well into their new school despite not speaking any English when they arrived (Principal's Letter, AMR, p. 54).
[35] Third, the Diaz Arroyos' submissions that the psychological hardship associated with removal constitutes irreparable harm is without merit in law or fact. As set out above, it is well-established that the kinds of hardship typically occasioned by removal do not constitute irreparable harm. Both this Court and the Court of Appeal have recognized that psychological hardship is typically occasioned by removal, and therefore does not usually meet the threshold for irreparable harm (Atwal, supra; Strachan, supra).
[36] As well, here, the letter from Lucien Larre and Tony Broman, which was not before the CBSA Officer, essentially states that the Diaz Arroyo children are anxious, depressed and stressed, due both to their experiences in adjusting to life in Canada and to their impending removal from Canada. This is exactly the kind of psychological hardship that is necessarily a corollary to the execution of a removal order and, as such, it is not irreparable harm for the purposes of the Toth test (Letter from L. Larre and T. Broman, AMR, p. 51-53).
[37] Moreover, the evidence is that the Diaz Arroyo children will have family and community support if they return to Mexico. They were born in Mexico and lived there before coming to Canada two years ago. They have extended family members in Mexico.
[38] The Diaz Arroyos have failed to establish that they will suffer irreparable harm if the Removal Orders are executed; therefore, they have not met the second prong of the test for a stay of removal.
Balance of Convenience Lies with the Respondent
[39] The circumstances of this case are such that the balance of convenience lies with the Respondent. Section 48 of the Immigration and Refugee Protection Act mandates that removal orders be enforced as soon as is reasonably practicable.
[40] The Diaz Arroys came to Canada two years ago, and made a refugee claim that was found not credible. They then had the benefit of a second administrative assessment by a PRRA Officer. Any outstanding H & C Application will continue to be processed after they have left Canada.
[41] In these circumstances, the absence of any criminal record and the Applicants' establishment in Canada do not tip the balance of convenience in their favour:
[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 smply a question of administrative convenience, but implicates the integrity and fairness of, and public confidence in, Canada's system of immigration control.
(Seliah, supra)
CONCLUSION
[42] The Diaz Arroyos have failed to establish any of the three elements necessary for this Court to grant an order staying execution of the Removal Orders. Consequently, this motion is dismissed.
ORDER
For all the above reasons, this Court orders that the motion be denied.
(Sgd.) "Michel Shore"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-884-06
STYLE OF CAUSE: ARMANDO ANTONIO DIAZ ARROYO et al.
- and -
THE MINISTER FOR PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: February 27, 2006
REASONS FOR ORDER AND ORDER: SHORE J.
DATED: February 27, 2006
APPEARANCES:
Mr. Gabriel Chand FOR APPLICANTS
Ms. Banafsheh Sokhansanj FOR RESPONDENT
SOLICITORS OF RECORD:
Rankin & Bond FOR APPLICANTS
Vancouver, BC
Mr. John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice - Vancouver