Docket: IMM-3986-16
Citation: 2016 FC 1118
Ottawa, Ontario, September 25, 2016
PRESENT: The Honourable Mr. Justice LeBlanc
BETWEEN:
ANDRIY RYABININ, MARYNA ZADROZHNA
VLADYSLAV ZADOROZHNYI, ANDRIY RYABININ
Applicants
and
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY
PREPAREDNESS
Respondent
ORDER
[1]
The Applicants seek a stay of their removal to
Ukraine scheduled for today.
[2]
The Applicants are a father and a mother and
their two minor children. They arrived in Canada in August 2015 and sought
refugee protection shortly thereafter. On March 14, 2016, their claim for
refugee status was found to have no credible basis by the Refugee Protection
Division (RPD). A subsequent Leave Application to judicially review the RPD
decision was denied by the Court. On June 13, 2016, the Applicants submitted
an application for permanent residence on humanitarian and compassionate considerations
pursuant to paragraph 25(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (the Act).
[3]
On August 29, 2016, the Applicants were directed
to report for removal to Ukraine on September 10, 2016. Removal was cancelled
on September 9. On September 20, 2016, the Applicants were served with a new
Direction to Report. They were now scheduled to be removed on September 25,
2016. Upon receipt of the new Direction to Report, they filed with the Canada
Border Services Agency (CBSA) a request to defer their removal, claiming that it
would not be in the best interest of Vladyslav, aged 15, to be removed to Ukraine at this time given his mental health condition. Vladyslav was diagnosed in June
2016 with Post-traumatic Stress Disorder (PTSD) and Adjustment Disorder with
mixed anxiety and depression symptoms after he attempted suicide by taking
anti-depressant medication, his fear of returning to his home country being
identified as the major trigger of his suicidal attempt.
[4]
On September 23, 2016, an Inland Enforcement Officer
(the Officer) denied their deferral request. The Officer held that Vladyslav
was medically fit to travel provided he is escorted by his parents and a nurse
to assist with anxiety. The Officer also noted that Ukrainian state border
agents had been contacted by CBSA and would be able to provide further medical
assistance to Vladyslav upon his arrival to Kiev, if required. As indicated at
the outset of this Order, the Applicants seek a stay of their removal while
they pursue an application for leave and judicial review of the Officer’s
decision which, they claim, is both procedurally unfair and unreasonable.
[5]
A stay of removal is an exceptional measure (Tesero
v Canada (Minister of Citizenship and Immigration), 2005 FCA 148, at para
47. The tripartite test, set out in Toth v Canada (Minister of Employment
and Immigration) (1988), 86 NR 302 (FCA) [Toth]), provides that for
a stay to be granted, an applicant must show: (1) that his underlying application
for leave and judicial review raises a serious issue; (2) that he will suffer
irreparable harm if the stay is not granted and the removal order is executed,
and (3) that the balance of convenience lies in his favour (RJR-MacDonald
Inc v Canada (Attorney General), [1994] 1 S.C.R. 311 [RJR]). This test
is conjunctive, meaning that in order to be successful, an applicant must
satisfy all three branches of the test (Vieira v Canada (Public
Safety and Emergency Preparedness), 2007 FC 626, at para 43).
[6]
In a context such as the present one, where a
party seeks an order staying the decision of a removal officer not to defer
removal, it is also well-settled that the Court “ought
not simply apply the ‘serious issue test’ but should go further, and closely
examine the merits of the underlying application” and be satisfied that
it has a “likelihood of success” (Wang v
Canada (Minister of Citizenship and Immigration), 2001 FCT 148, [2001] 3 FC
682, at para 10 [Wang]).
[7]
The Court must also be mindful that the
discretion of a removal officer to defer removals is extremely narrow as the
officer’s primary task, according to section 48 of the Immigration and
Refugee Protection Act, SC 2001, c. 27, is to enforce removal orders ‘as
soon as possible’. That discretion has been held to be restricted to
determining when, and not if, removal will be executed and should be exercised
only in cases where there is clear evidence of a risk of death, extreme
sanction or inhumane treatment or in temporary exigent circumstances, such as
facilitating appropriate travelling arrangements (Baron v Canada (Minister
of Public Safety and Emergency Preparedness), 2009 FCA 81).
[8]
Here, even accepting, without deciding it, that
the Applicants’ application for leave and judicial review of the Officer’s
decision raises a serious issue within the meaning of Wang, I am not
satisfied that they have established that they will suffer irreparable harm if
removed to Ukraine. As is well established, irreparable harm must be
established through clear, convincing and non-speculative evidence and must be
something more than the inherent consequences of deportation (Atwal v Canada
(Minister of Citizenship and Immigration), 2004 FCA 427; Melo v Canada
(Minister of Citizenship and Immigration), (2000), 188 F.T.R. 39).
[9]
According to the evidence on record, Vladiyslav’s
mental health problems are recent and they are essentially linked to the
prospect of returning to Ukraine. He was first seen by a doctor in late April
2016, that is a few days after the family was informed by CBSA that the removal
order pending against them was enforceable and that they had to leave Canada. The suicide attempt occurred four days after the family met again with CBSA and
asked to sign a Direction to Report setting up the date of removal to July 2,
2016. Vladiyslav also visited the emergency of the Hospital for Sick Children
in Toronto on September 21, 2016 where he was diagnosed with anxiety. This was
the day after the family was handed down the current Direction to Report.
[10]
This fairly recent condition is in sharp contrast
to the situation prevailing in Tiliouine v Canada (Public Safety and
Emergency Preparedness), 2015 FC 1146, to which the Applicants refer in
their submissions. In that case, where a stay of removal was granted, the
applicant had been suffering from severe and chronic PTSD and depression and
attempted to her life well before coming to Canada as a result of years of extreme
physical and psychological abuse and violence in her home country. Here, there
is no evidence that Vladiyslav ever sought or received medical care for mental
health issues before coming to Canada. In the affidavit she signed in support
of the present motion for a stay, Vladiyslav’s mother refers to his nervousness,
irritability and fears while the family was still living in Ukraine. However, I note that this description is related to the events that allegedly led
the family to leave Ukraine. These events, which formed the basis of the
family’s refugee claim, were found not to be credible by the RPD. As indicated
previously, leave was denied by this Court. These assertions must therefore be
taken with caution.
[11]
That is not to say that Vladiyslav’s current
condition is not serious but the evidence on record is that there are measures
in place to mitigate the risks of self-inflicted harm and manage his anxiety
problems: Vladiyslav is not returning alone to Ukraine, from which he has only
been absent for a year, but he is returning there surrounded by his father,
mother and younger brother; the family will be travelling with a nurse and
Ukrainian border officials will have medical staff available should they be
needed upon arrival in Kiev. Further, the Applicants have not demonstrated
that Vladiyslav cannot receive the care he needs in Ukraine for his anxiety,
PSTD or Adjustment Disorder. The fact that there may be some issues with the
Ukrainian health care system does not establish that the care required by
Vladiyslav will not be available or rise to the level of irreparable harm. Again,
clear, convincing and non-speculative evidence is required to establish
irreparable harm. This threshold regarding the issue of availability or
unavailability in Ukraine of the care required by Vladiyslav has not been met.
[12]
As sad and disruptive the situation might be for
Vladiyslav, a stay of removal is an exceptional measure and I have not been
persuaded that the situation in this case is such that a stay of removal is
warranted.
THIS COURT ORDERS that the motion is dismissed.
"René LeBlanc"
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