Toronto, Ontario, June 11, 2007
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondent
[1] The question in this case is whether the Court should interfere with an administrative decision not to defer a removal order which in any event cannot be enforced at the present time because a legal stay of that order is already in force. The answer is no; at least on the facts of this case.
[2] Ms. Obatta, apparently a Nigerian citizen, arrived in Montreal on an Air France flight from Paris. She was travelling on a stolen British passport. The Canadian authorities had been alerted and were waiting for her. She tried to bluff her way through, without success. She was ruled to be inadmissible and a removal order was immediately issued against her. The intention was to put her back on the plane to Paris.
[3] However, her story then changed. She said who she really was, and that she was pregnant. She wanted to protect her unborn daughter from genital mutilation. She also claimed to be having contractions. She remained in Canada that night as the pilot would not take her on board. She was sent to a local hospital. In due course she gave birth. Because Ms. Obatta was already subject to a removal order, it was too late for her to claim refugee status. Her daughter, however, is a Canadian citizen and not subject to removal. She sought leave and judicial review of her removal order. Leave was refused.
[4] However, the Immigration and Refugee Protection Act (IRPA) entitled her to ask for both a pre-removal risk assessment (PRRA) and to apply for permanent status from within Canada on humanitarian and compassionate grounds (H&C). She did both. No decision has been rendered on either application.
[5] An H&C application does not, by mere operation of law, give rise to a stay of a removal order. If a failed refugee claimant applies for a PRRA, the application normally triggers an automatic stay of any removal order. However, pursuant to section 166 of the Immigration and Refugee Protection Regulations, however, when a removal order is made at a port of entry following a determination of inadmissibility, a PRRA application does not automatically generate a stay. A stay may be obtained administratively from an immigration officer, or judicially from the Court.
[6] She asked the removals officer to administratively stay her departure pending the outcome of her PRRA and H&C applications. The officer refused. That decision is the subject of the present judicial review.
THE UNDERLYING DECISION
[7] The reasons for the officer’s decision are to be found in a note to file of 8 November 2006, as well as in earlier notes of 2 November and 6 November. A number of reasons were given. The ones I consider relevant are that no date had yet been fixed for her removal. The second was that if removed, it was Ms. Obatta’s intention to take her daughter with her. They were awaiting a needed Canadian passport for her baby. The third is that there was a statutory stay against removing Ms. Obatta because she was subject to criminal charges. This gave rise to an automatic stay by virtue of section 50 of IRPA.
[8] There were other reasons given which bear little or no weight. One is that a travel document had to be obtained for Ms. Obatta before the pre-removal risk could be assessed. However, the Nigerian High Commission indicated that a document would be issued on request. Another reason was that the officer said she took the interests of the child into account. This was a bald statement, with no particulars whatever given.
ISSUES
[9] On behalf of Ms. Obatta it is submitted that the removals officer failed to provide adequate reasons and failed to properly exercise her discretion.
[10] The Minister agrees these are relevant issues, but submits that the removals officer acted appropriately. He further suggests that the application should be dismissed as being moot, and also because Ms. Obatta does not come to Court with clean hands.
[11] I add another issue: the extent to which reference should be made to material that was not before the removals officer.
DISCUSSION
[12] Neither party paid much heed to the general principle that a judicial review of a decision is based on the material which was before the decision-maker. Both parties have gone to considerable lengths to inform the Court as to what has happened since the decision in November 2006. The Minister takes the position that no decision has been taken in the PRRA application and perhaps in the H&C as well, because Ms. Obatta has not been cooperative in obtaining proper documentation. Furthermore, although the criminal charges could be stayed so that section 50 of IRPA would no longer be an impediment, the charges are not going to be stayed because there is a fresh second criminal charge against her.
[13] Ms. Obatta claims that the Minister is sitting on his hands. Decisions should have been made by now, particularly considering the terrible risk her daughter faces should she go to Nigeria. However Ms. Obatta must realize that although she gained Canadian citizenship for her daughter by coming here under false pretences, should she make arrangements to leave her daughter here, it does not necessarily follow that the best interests of the child mean that the mother also remain.
[14] However, none of these facts are relevant in assessing the appropriateness of the November 2006 decision.
[15] The officer was correct in law in stating that the pending criminal charges operated as a statutory stay. It is speculative on Ms. Obatta’s part to say that the Court should nevertheless proceed because those charges could be stayed.
[16] The officer correctly understood the jurisprudence of this court to the effect that it is premature to seek a stay before a date for removal has been fixed. Although Mr. Justice Rothstein was speaking of a judicial stay as opposed to an administrative stay, a stay should not be granted before the Minister fixes an actual date for removal. He laid out this rule in Rajan v. Canada (Minister of Employment and Immigration) (1994), 86 F.T.R. 70, [1994] F.C.J. No. 1618 (QL) where he said at paragraph 12:
In respect of the application for an order directing the respondent not to require the applicant to leave Canada, I think this application is premature. If the applicant does not leave Canada of her own volition, as I earlier indicated, a stay application may be brought when the applicant is advised by the respondent as to when she must leave. This aspect of the stay application therefore must also be dismissed.
[17] Furthermore the officer did exercise some discretion in that she did not attempt to separate Ms. Obatta from her child, and indicated that there would be no removal before the child was issued a Canadian passport.
[18] Consequently I have come to the conclusion that the application is both premature and moot. I see no reason to nevertheless exercise my discretion to determine a moot point.
[19] One does not know the outcome of the criminal charges, or whether they will be stayed, or when or how the PRRA and H&C applications will be decided. If, as and when a date for Ms.Obatta’s departure is fixed, the PRRA and H&C applications are not fully resolved, she can then ask the removals officer for an administrative stay. That stay may be granted, or it may not. If it is not granted, she is then entitled to seek a fresh application for leave and for judicial review, and to seek a judicial stay in the interim. At that time due consideration can be given to “clean hands” or “sitting on hands”. The applicant has until Tuesday, 19 June 2007 to propose a question of general importance, and the respondent until Friday, 22 June 2007 to reply.
“Sean Harrington”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5986-06
STYLE OF CAUSE: ESTHER VICTOR OBATTA v.
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
PLACE OF HEARING: Montreal, Quebec
REASONS FOR ORDER: Harrington J.
APPEARANCES:
|
Ms. Annick Legault
|
|
|
Ms. Michèle Joubert
|
SOLICITORS OF RECORD:
|
Annick Legault Montreal, Quebec
|
|
|
John H. Sims, Q.C. Deputy Attorney General of Canada
|