Date: 19990520
Docket: IMM-2342-99
BETWEEN:
ANNA DOVGAN
OKSANA DOVGAN
NATALIA DOVGAN
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[Delivered from the Bench in Toronto, Ontario,
on May 10, 1999, as edited and expanded]
LEMIEUX J.:
A. FACTS
[1] These written reasons confirm and expand those which I rendered in Toronto dismissing the applicants' motion to this Court for an order staying the removal of the applicants from Canada to the Ukraine, scheduled for May 17, 1999 pending the determination of their application for judicial review.
[2] The application for leave to commence judicial review was filed by the applicants on May 7, 1999 as was the motion for stay heard today.
[3] The decision attacked in the judicial review proceedings is said to be the decision made by Z. Barisic, Enforcement Officer, Citizenship and Immigration Canada ("CIC") dated April 8, 1999.
[4] What Mr. Barisic issued to the applicants on April 8, 1999, was a direction to report at Pearson International Airport on May 17, 1999 since their removal from Canada had been scheduled for that day.
[5] The applicant, Anna Dovgan, and her two daughters Oksana and Natalia, arrived in Canada on May 12, 1991 and were granted visitors' visas at the airport. On October 10, 1991, they made refugee claims.
[6] Before the applicants' refugee claim was heard and determined, the applicants requested exemption for landing in Canada on humanitarian and compassionate grounds. On March 17, 1992, that application was turned down on the basis, in part, the applicants had not demonstrated any sanctions or hardship would befall them should they return to their country of origin.
[7] On June 30, 1992, the applicants were issued departure notice on the grounds they remained in Canada after ceasing to be visitors.
[8] On September 22, 1993, their refugee claims were denied. Leave to appeal was denied by this Court on September 23, 1994.
[9] On March 22, 1995, the applicants were advised that a PDRCC assessment had been made to determine whether they would be subjected to an objectively identifiable risk to their lives, to extreme sanctions or inhumane treatment if required to leave Canada for the Ukraine.
[10] The material considered by the Post Claims Determination Officer ("PCDO") consisted of their Personal Information Forms, the Convention Refugee Determination Division's ("CRDD") decision of September 22, 1993 and country reports on human rights practices for 1993. The applicants, although invited, had not made any submissions.
[11] The PCDO found as follows:
| I HAVE FOUND NO SUBSTANTIVE EVIDENCE IN THE DOCUMENTS BEFORE ME THAT WOULD INDICATE THAT THE APPLICANTS WOULD FACE A RISK TO THEIR LIVES, OR RISK OF INHUMANE TREATMENT, OR EXTREME SANCTIONS AGAINST THEM SHOULD THEY BE RETURNED TO UKRAINE. FUNDAMENTAL CHANGES HAVE OCCURRED IN UKRAINE SINCE THE APPLICANTS' DEPARTURE IN MAY 1991. BOTH INDEPENDENCE AND FREEDOM OF RELIGION HAVE BEEN ACHIEVED. THE APPLICANTS DO NOT MEET THE DEFINITION OF A MEMBER OF THE POST-DETERMINATION REFUGEE CLAIMANTS IN CANADA CLASS AS DEFINED IN IMMIGRATION REGULATIONS 2(c). |
[12] On June 24, 1997, the applicants were advised that they did not meet the eligibility criteria for the Deferred Removal Orders Class ("DROC") in that they had not filed their application within the prescribed time.
[13] As I read the record before me, since October 14, 1998 and perhaps before, CIC has been attempting to have the applicants report for interviews to make arrangements for their departure from Canada.
[14] The applicants attended an interview at CIC in Toronto on November 18, 1998 and the scheduled departure date was deferred. Between November 18, 1998 and April 8, 1999, a number of interviews were scheduled but the applicants or some of them failed to report.
[15] On April 8, 1998, an interview to make arrangements for their departure took place but Natalia Dovgan did not attend. The applicants' legal counsel was present. At the interview, the applicants were served with the direction to report at Pearson International Airport on May 17, 1999 for their scheduled removal. It is this direction to report which is the subject matter of the underlying judicial review application.
[16] At the April 8, 1999 meeting, CIC was informed Natalia Dovgan had married a Canadian citizen on April 6, 1999.
[17] The affidavit material also discloses Oksana Dovgan is married. She married her boyfriend from the Ukraine who joined her in Canada. They have one daughter born in Canada. Oksana Dovgan's husband made a recent application for PRDCC consideration.
[18] On April 8, 1999, CIC also hand delivered a letter to the applicants dated that day, advising them that another interview was scheduled for April 12, 1999 to complete their arrangements for their removal. The applicants were asked to bring photos and Natalia's completed travel document forms.
[19] On April 13, 1999, CIC was advised that the applicants' legal counsel was no longer acting on their behalf.
[20] On April 26, 1999, the applicants were directed by CIC to report for an interview on May 3, 1999. They were asked to bring any documents concerning criminal matters, scheduled court dates, any probation or parole recommendation, any proof of applications for permanent residence, etc., (if applicable).
[21] On or about April 29, 1999, the applicants filed with CIC applications for permanent residence in Canada and sought an exemption under section 114 of the Immigration Act on humanitarian and compassionate grounds, which, if granted, would allow the processing of those applications in Canada.
[22] Attached to their applications for permanent residence was a document entitled "Dovgan Family Narrative" dated April 29, 1999, setting out the humanitarian and compassionate grounds upon which their exemption applications were based.
[23] The essence of the Dovgan Family Narrative is that Anna Dovgan's husband and three sons (who remained in the Ukraine after she and her two daughters arrived in Canada in 1991) became the target of extortionists who believed the Canadian branch of the Dovgans were wealthy. The extortionists were relentless. One son was kidnapped in November 1996 and because ransom could not be paid, he was killed. The crime was reported to the police but the persons responsible were not apprehended. They fled to St. Petersburg with one son remaining there, the other son living in Russia, but the father returning to the Ukraine and living in his sister's house because of fear to return to the family home in Polany. Anna Dovgan's husband is said to have disappeared at the same time as the family home was mysteriously destroyed. The Canadian Dovgans fear they will be assaulted, kidnapped and murdered by an organized crime gang attempting to extort money from them which they do not have.
[24] The May 3, 1999 interview took place. The only record I have of that interview is contained in the affidavits of Anna Dovgan and Oksana Dovgan who say that the purpose of that interview was to discuss their removal and their recently filed application for permanent residence since they had been asked to bring that documentation along with them. The two applicants at the interview (Natalia Dovgan was not there) say that the Enforcement Officer questioned them about their H & C application at length but only with respect to their connections with Canada and would not accept any information about the hardship facing the applicants which forms the central part of their H & C application.
[25] After that interview, the applicants filed their application for leave and judicial review as well as the stay motion before me.
| B. ANALYSIS |
[26] The stay motion is made pursuant to section 18.2 of the Federal Court Act which authorizes this Court to make such interim orders as it considers appropriate pending the final disposition of an application for judicial review. The applicants also invoked paragraph 50(1)(b) of the Federal Court Act which gives the Court the power to stay proceedings in any manner where it is in the interest of justice that the proceedings be stayed.
[27] In terms of the test for a stay of removal, the applicants relied upon Toth v. M.E.I. (1988), 86 N.R. 302. The applicants put forward three arguments
on serious issues namely:
| (a) the applicants did not receive a determination from CIC of their applications made under the DROC Program; |
| (b) the applicants were not afforded a balanced review by the Enforcement Officer of the compassionate or humanitarian grounds for deferring their removal to allow an inland review of their H & C applications. In this respect, the officer refused to exercise his discretion in a proper manner; and |
| (c) the officer acted without jurisdiction in claiming to be able to circumvent the PRDCC review process by Oksana's husband in order to ensure that the spouse of one applicant would be removed from Canada on May 17, 1999. |
[28] The applicants' stay application was dismissed by me because the applicants failed to satisfy me that there was a serious issue to be tried and this for two principal reasons.
[29] First, the circumstances of the case before me are very similar to the circumstances which were before Strayer J., (as he then was), in Shchelkanov v. M.E.I. (1994), 76 F.T.R. 151, where a stay of a removal order was refused.
[30] As in this case, in Shchelkanov, there was no attack, in judicial review proceedings, on a valid deportation order; there was, however, the launching of a judicial review proceeding arising out of a very recent filing of an application for permanent residence to be processed in Canada on humanitarian and compassionate grounds.
[31] In Shchelkanov, Strayer J. said that it was inappropriate, under section 18.2 of the Federal Court Act, to stay the execution of an undoubtedly valid deportation order pending a judicial review of a completely different action (or inaction), particularly arising out of humanitarian and compassionate exemption applications which are completely undisciplined and may be filed at the last minute. This is the situation which exists before me.
[32] Strayer J. identified in Shchelkanov that there may be circumstances where a stay of a valid deportation order may be appropriate. He identified, as one, the haste of the Minister in executing a deportation order and the impact which such action might have on the judicial process. This factor, nor any other legitimate factor such as undue delay in considering an H & C application or the necessity of conducting a risk assessment, are not present in the case before me. (See also Francis v. Canada, IMM-156-97, January 14, 1997, Noël J., (as he then was); Younge v. Canada, IMM-2566-96, January 3, 1997, Richard J., (as he then was); Garcia v. Canada, IMM-3030-95, November 9, 1995, McGillis J. and Brushtulli v. Canada, IMM-2402-97, June 12, 1997, Noël J., (as he then was).)
[33] The applicants are wrong to say their DROC determination has yet to be made. That determination was made June 24, 1997. They are also wrong to say their H & C application was determined on April 8, 1999. The record does not indicate a decision was made in this respect. Their H & C application can be processed notwithstanding their removal. Moreover, the record does not indicate Oksana's husband's PDRCC application has been short-circuited.
[34] The second reason I found that the applicants had not satisfied me on the point of a serious issue relates to the fact the applicants' behaviour throughout undermines the credibility of their fear and the risk they might face upon returning to the Ukraine. This case, in this respect, is similar to a recent judgment of the Federal Court of Appeal in Jeyarajah, A-749-98, February 12, 1999 where Sexton J.A. said this:
| We agree with the conclusion reached by the learned motions' judge. It is simply not credible that if indeed the plaintiff felt he was at risk that he would fail when invited to do so to make known this risk to Citizenship and Immigration Canada. Indeed, he waited at least two and half years after being invited to make such submissions before raising this issue. During that interval, he was being advised by A solicitor and had commenced an action against the Minister without mentioning any circumstances which might constitute a risk to his person. In these circumstances, we feel the learned Motions' Judge was quite correct in his conclusion that there was no serious issue to be tried. The mere existence of a refugee status, especially when such status was granted many years ago, is not, in the absence of evidence of actual risk sufficient to give rise to a serious factual issue. |
[35] In my view, the applicants had several opportunities to make it known, in a timely fashion, to the respondent, their risk of return to the Ukraine. They did not do so.
[36] It flows from my findings on the serious issue point that the applicants have not satisfied me on the other two prongs of the test for granting stays namely, irreparable harm and balance of convenience.
[37] For these reasons, the stay application of the applicants is dismissed.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
MAY 20, 1999