Date: 20081208
Docket: IMM-5276-08
Citation: 2008 FC 1360
Ottawa, Ontario, this 8th
day of December 2008
Present: The Honourable Orville
Frenette
BETWEEN:
GRATIANA
DIONE EWANG
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY
PREPAREDNESS
Respondent
REASONS FOR ORDER
AND ORDER
[1]
This
is a motion seeking a stay of execution of an order of removal to the United
States,
scheduled for November 9, 2008 at 9:00 a.m.
[2]
The
applicant is a native of Cameroon, who came to Canada from the United
States
on September 22, 2002 and claimed refugee status. She had not claimed that
status in the U.S.
[3]
The
Refugee Protection Division (the “RPD”) refused her refugee claim on February 18, 2004. Her
application for judicial review of that decision was denied on June 11, 2004.
[4]
The
applicant applied for permanent residence on Humanitarian and Compassionate
(“H&C”) grounds; this was refused. Her Pre-Removal Risk Assessment (“PRRA”)
application was rejected and the reasons were communicated to her on November 5, 2008.
[5]
The
applicant requested a deferral of the removal order issued, but it was refused
on November 17, 2008.
[6]
She
now applies to obtain a stay of the execution of the removal order until the
disposition of an application for judicial review of the PRRA decision and the
refusal of the deferral.
[7]
The
evidence on file shows that since she is in Canada, the
applicant is gainfully employed and participates in community and church
activities.
[8]
In
2002, she met Mr. Leslie Donova Black and co-habited with him; they were
married on November 17, 2008.
[9]
In
Toth v. Minister of Employment and Immigration (1988), 86 N.R. 302, the
Federal Court of Appeal established a tri-partite conjunctive set of conditions
to determine if a stay should be granted, i.e.:
1.
There
is a serious issue to be tried;
2.
Irreparable
harm will be caused if the stay is not granted; and
3.
The
balance of convenience favours granting the stay.
[10]
The
threshold test to establish that there is a serious issue is, according to
Justice Pelletier in Wang v. Minister of Citizenship and Immigration,
[2001] 3 F.C. 682, at paragraph 11: the serious issue is not “frivolous and
vexatious”, but rather that it has a “likelihood of success” in the underlying
application.
[11]
The
applicant seeks a stay of removal until the applications for leave and for
judicial review of the PRRA decision and the removal officer’s decision are
determined. She submits that the PRRA officer erred in not interviewing her after
he examined the “new evidence” (i.e. a newspaper article which was not part of
the evidence in the Refugee Protection Division’s hearing of 2004) (see Elzi
v. Minister of Citizenship and Immigration, 2007 FC 240).
[12]
She
alleges the officer did not properly assess the extreme hardship she would
suffer if returned to Cameroon. She also pleads that
the officer did not assess her establishment in Canada and the
effects of the removal on her marriage.
[13]
The
respondent answers that the PRRA officer did not commit any error because he
examined the 2006 newspaper article, which showed a picture of the applicant as
“young people operating under SCYL and who have made an impact with their
activities”. He states this is a general article which lacks sufficient detail
and presumably refers to incidents which occurred before April 2002, and shows
no indication as to why the applicant would be included four years later about
being arrested and detained in Cameroon.
[14]
The
officer analyzed all the evidence and there was no valid reason requiring the
applicant to be re-consulted about this evidence which she had offered.
[15]
The
officer also addressed all the other issues raised by the applicant.
[16]
In
my view, I do not perceive any issues which would have any “likelihood of
success” in the judicial review.
[17]
The
applicant submits the PRRA officer did not address properly the following
matters:
1.
the
psychological impact of the deportation;
2.
the
hardship of separation from her husband and Canada; and
3.
the
hardships and risks of a return to the established danger in Cameroon.
[18]
The
respondent submits that the PRRA officer did address all of these concerns. All
of the concerns raised are speculative and therefore cannot be accepted (Atakora
v. Minister of Citizenship and Immigration, [1993] F.C.J. No. 826 (T.D.)).
Furthermore, the applicant is to be removed to the U.S. and no
evidence was presented to justify concluding that she would automatically be
deported to Cameroon.
[19]
An
analysis of these submissions leads to the conclusion that the applicant will
suffer harm and inconvenience by a deportation but these are usual consequences
that cannot be considered as “irreparable harm” in a stay application (Melo
v. Minister of Citizenship and Immigration, [2000] F.C.J. No. 403
(T.D.), at paragraphs 20 and 21; Wright v. Minister of Citizenship and
Immigration, [2002] F.C.J. No. 138 (T.D.)).
[20]
The
applicant has had the benefit of the usual range of remedies under the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, (the “Act”) and the Minister
has the obligation to execute removal orders as soon as practicable (see subsection
48(2) of the Act). The applicant has not advanced any reason that prevails over
this obligation.
[21]
Finally,
public interest in having final decisions on the merits in immigration and
refugee cases, weighs heavily against stays. See, for example, Minister of
Citizenship and Immigration v. Fast (2000), 188 F.T.R. 150, affirmed by the
Federal Court of Appeal (2001), 288 N.R. 8.
[22]
The
applicant submits that the removal officer wrongly exercised his discretion in
refusing a deferral of the date of execution of the removal order. The removal
officer has no expertise and possesses no powers to assess risk factors as a
PRRA officer does and is limited to practical problems in deferrals. He or she
may consider factors such as illness, or other impediments to travelling and
perhaps in cases of long-standing H&C applications that were brought on a
timely basis but have yet to be resolved. This is not the case here. Since
2002, the applicant has exhausted most legal recourses she could invoke under
the Act.
[23]
The
argument based upon waiting a decision of judicial control of a PRRA decision
is not a valid reason for a removal officer to defer the execution of the order
(Simoes v. Minister of Citizenship and Immigration, 187 F.T.R. 219, at
paragraph 12).
[24]
Considering
the above conclusions, this motion is dismissed.
ORDER
The
motion for a stay of execution of the removal order scheduled for
December 9, 2008 at 9:00 a.m. is hereby dismissed.
“Orville
Frenette”
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