Ramdass v. Canada (Public Safety and Emergency Preparedness), 2023 FC 42

Date: 20230111

Docket: IMM-103-23

Citation: 2023 FC 42

Ottawa, Ontario, January 11, 2023

PRESENT: The Honourable Mr. Justice Roy

BETWEEN:

KAREN DRUPATTIE RAMDASS

Applicant

and

THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS

Respondent

ORDER AND REASONS

[1] The Applicant, Ms. Karen Drupattie Ramdass, must report to leave Canada for her country of citizenship, Guyana, on January 12, 2023. The direction to report was dated November 4, 2022; she sought an administrative deferral only on December 28, 2022. Her notice of motion to this Court for a judicial deferral is dated January 4, 2023 and the deferral refusal decision came on January 5, 2023.

[2] The facts are relatively straightforward. The Applicant has been living in Canada without status since her arrival on January 17, 2003. Ms. Ramdass made a refugee claim on January 18, 2003, such claim having been abandoned on April 20, 2004.

[3] We learn from the Respondent’s record that a warrant for the arrest of the Applicant was issued on September 27, 2007 because she was deemed unlikely to appear for her removal, having failed to appear for her pre-removal interview. She has evaded detection until she presented herself on September 26, 2019. She was released on bail. She has since been available.

[4] The Respondent’s record also discloses that Ms. Ramdass saw her application for a pre-removal risk assessment being rejected on June 3, 2020. As the decision points out “the removal order against you may now be enforced”. The decision notes that “the incidents and risk allegations raised by the applicant appear to be those of general crime and country conditions that are faced by all residents of Guyana”.

[5] The particular circumstances of the Applicant can be quickly summarized:

• born on January 23, 1969;
• two adult children born in the U.S., aged 26 and 22 years old; are also Canadian citizens;
• married current husband on October 5, 2019, shortly following the Applicant’s arrest of September 26, 2019. In her affidavit the Applicant states “(w)e [her husband and her] had already been talking about getting married as we had been living together for several months, but we decided to fast forward those plans due to the prospect of removal” (Applicant’s affidavit, para 14);
• the Applicant’s new husband (who is also the father of their two adult children) sought to sponsor for permanent residence the Applicant under the Spouse or Common Law Partner in Canada Class. The application was rejected on September 26, 2022 because the relationship was deemed not to be genuine. However, the application was re-opened on December 13, 2022.

[6] The request for an administrative deferral was denied on January 5, 2023. The Officer noted that the Applicant was granted a 30-day deferral of removal following her removal interview of November 12, 2021, such deferral being to await the response to the sponsorship application (the in-Canada spousal application had been received by MCI in December 2019).

[7] The Applicant raised as part of her latest request for a deferral the Public Policy Under A25(1) of IRPA to Facilitate Processing in accordance with the Regulations of the Spouse or Common-law Partner in Canada Class, which addresses the situation when the person sponsored does not have legal immigration status in Canada. The Officer quoted from the Policy itself to conclude that it could not constitute relief in this case. I reproduce the paragraph from the Policy which appears to exclude someone like the Applicant.

When is a client removal ready?

For the purposes of this public policy, by the time an applicant attends a pre-removal interview, he/she is generally removal ready. This means that a client who has been called to a pre-removal interview by any means (letter, call etc.) and who has not already applied as a spousal H&C applicant or a Spouse or Common-law Partner in Canada class applicant, cannot, from the point they are called to the interview forward, benefit from an administrative deferral of removal as outlined in this public policy except in the limited circumstances outlined below (transitional cases).

The Applicant has been “removal ready” since September 2007 when she failed to appear for her removal from Canada. It follows, says the enforcement officer, that “no spousal application submitted after her no-show and subsequent warrant for her arrest in 2007 qualifies under the established policy”. That is sound and it is unlikely that the Applicant has a winning argument.

[8] The Officer notes that the Applicant presented herself on September 26, 2019 to the arresting authorities, but only after Canada Border Security Agency agents had interactions with her family members in an attempt to locate the Applicant. That made counsel for the Respondent suggest that the Applicant comes to Court without “clean hands”. I do not believe that this case turns on that notion. The Officer states that his discretion to grant a deferral is limited and that the reasons offered for the deferral, other than the use of the Policy, refer to the risk she claims she will face if she returns to her country of nationality, Guyana, a matter dealt with in the pre-removal risk assessment. There are no new facts that could justify a deferral. As a result, the requested deferral was rejected.

[9] In stay applications before the Federal Court, the Court applies the three-prong test which is well-known:

1. there is a serious issue to be determined in the underlying judicial review;

2. the applicant will suffer irreparable harm if the stay is not granted;

3. the balance of convenience lies with the applicant.

(RJR - MacDonald Inc. v Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 SCR 311; Toth v Canada (Minister of Employment and Immigration), (1988) 1988 CanLII 1420 (FCTAD), 86 NR 302)

The test is conjunctive: in order to succeed, the Applicant must satisfy each prong. In my view, none of the three prongs has been met.

[10] In a deferral case such as this one, the Federal Court of Appeal found in Baron v Canada (Public Safety and Emergency Preparedness), 2009 FCA 81, [2010] 2 FCR 311 [Baron] that an applicant “must be able to put forward quite a strong case” (at para 67). In Wang v Canada (Minister of Citizenship and Immigration), [2001] 3 FC 683 [Wang], Justice Pelletier, then of this Court, decided that the first prong is not satisfied by simply advancing that the serious issue is not frivolous or vexatious, as for example for the granting of an interlocutory injunction. The test is rather for the applicant to establish the likelihood of success on the underlying judicial review (Wang, at paras 10 and 11). The Wang decision was endorsed by the Baron Court.

[11] The Applicant has not satisfied the requirement that she has quite a strong case or that there is a likelihood of success. The policy she invokes does not apply to her and the fear of going back to Guyana has already been addressed without new facts being presented that could justify a deferral. The Officer was not wrong to refer to Canada (Public Safety and Emergency Preparedness) v Shpati, 2011 FCA 286, [2012] 2 FCR 133. Paragraphs 41 and 42 are deserving of being quoted at length:

[41] As already noted, the officer rejected Mr Shpati’s argument on risk by pointing out that the Board had rejected his claim for refugee status, a decision upheld by the Federal Court, and that his PRRA application had also been dismissed. The officer further stated that he was refusing to defer on the ground of risk because Mr Shpati had produced no evidence of some new (that is, post-PRRA) risk to which he would be exposed it returned to Albania. I infer from this that if Mr Shpati had such evidence, the officer would have considered whether it warranted deferral and exercised his discretion accordingly.

[42] In my view, this is an accurate statement of the law. It is consistent with the position adopted by this Court in Baron v. Canada (Minister of Public Safety and Emergency Preparednes), 2009 FCA 81, [2010] 2 F.C.R. 311 (Baron). Baron concerned an enforcement officer’s power to defer removal pending the determination of an H&C application. The present case is analogous to Baron in that there is no statutory stay of removal pending the determination of either an H&C application or a judicial review application with respect to a negative PRRA.

[12] In the case at bar there exists an application that is pending for the Applicant’s sponsorship. However, I have not been persuaded that this constitutes something that can be successfully raised. In Baron, we read at paragraph 51 that “(i)n considering the duty to comply with section 48, the availability of an alternate remedy, such as a right to return, should be given great consideration because it is a remedy other than failing to comply with a positive statutory obligation”. That is the case with a sponsorship application. If successful, the Applicant will be accepted in Canada.

[13] In that same paragraph, the Court of Appeal states this:

• In order to respect the policy of the Act which imposes a positive obligation on the Minister, while allowing for some discretion with respect to the timing of a removal, deferral should be reserved for those applications where failure to defer will expose the applicant to the risk of death, extreme sanction or inhumane treatment. With respect to H&C applications, absent special considerations, such applications will not justify deferral unless based upon a threat to personal safety. [Emphasis in original.]

• Cases where the only harm suffered by the applicant will be family hardship can be remedied by readmitting the person to the country following the successful conclusion of the pending application.

[14] The Officer was right to consider his discretion limited. In Lewis v Canada (Public Safety and Emergency Preparedness), 2017 FCA 130, [2018] 2 FCR 229, the Federal Court of Appeal re-asserted the principles:

[54] Deferral requests are typically the last application made by those who are not entitled to remain in Canada. In light of this and of the language used by Parliament in section 48 of the IRPA, directing that removal orders be enforced as soon as possible (or formerly as soon as is reasonably practicable), this Court and the Federal Court have long held that the discretion that an enforcement officer may exercise is very limited: Shpati at para. 45; Baron at para. 51; Wang v. Canada (Minister of Citizenship and Immigration), [2001] 3 F.C.R. 682 at para. 45, 2001 FCT 148 (F.C.T.D.); and Simoes v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 15668 (FCTTD), 187 F.T.R. 219 at para. 12, 7 Imm. L.R. (3d) 141 (F.C.T.D.) [Simoes].

[55] As this Court noted in Baron at paragraph 49 (citing with approval from the earlier decision of the Federal Court in Simoes):

[…] the discretion that [an enforcement] officer may exercise is very limited, and […] is restricted to when a removal order will be executed. In deciding when it is “reasonably practicable” for a removal order to be executed, [an enforcement] officer may consider various factors such as illness, other impediments to travelling, and pending H&C applications that were brought on a timely basis but have yet to be resolved due to backlogs in the system.

That would suffice to dismiss the motion for a stay of the removal order. I would nevertheless comment on the other two prongs.

[15] It is not enough to state that irreparable harm will ensue if the stay is not granted. A significant line of cases was endorsed in Western Oilfield Equipment Rentals Ltd. v M-I L.L.C., 2020 FCA 3, which establishes that much more is needed:

[11] I begin with the remarks of my colleague Stratas J.A. found at paragraph 24 of his reasons in Janssen, where he sets out his understanding of the second branch of the test:

On the irreparable harm branch of the test, the moving party must demonstrate in a detailed and concrete way that it will suffer real, definite, unavoidable harm — not hypothetical and speculative harm — that cannot be repaired later: Stoney First Nation v. Shotclose, 2011 FCA 232 at paragraphs 47-49 ; Laperrière v. D. & A. MacLeod Company Ltd., 2010 FCA 84 at paragraphs 14-22 ; Gateway City Church v. Canada (National Revenue), 2013 FCA 126 at paragraphs 14- 16 ; Glooscap Heritage Society, supra at paragraph 31; Canada (Attorney General) v. Canada (Information Commissioner), 2001 FCA 25 at paragraph 12 . Here again, it would be strange if a litigant complaining of harm it caused itself; harm it could have avoided or repaired, or harm it still can avoid or repair could get such serious relief. Similarly, it would be strange if vague assumptions and bald assertions, rather than detailed and specific evidence, could support the granting of such serious relief.

[My emphasis.]

[12] I agree entirely with Stratas J.A.’s understanding of the second part of the RJR-MacDonald test.

[16] The Gateway City Church case provides a clear articulation of the governing rules:

[14] Such a general assertion is insufficient to establish irreparable harm: Holy Alpha and Omega Church of Toronto v. Canada (Attorney General), 2009 FCA 265 at paragraph 22. That sort of general assertion can be made in every case. Accepting it as sufficient evidence of irreparable harm would unduly undercut the power Parliament has given to the Minister to protect the public interest in appropriate circumstances by publishing her notice and revoking a registration even before the determination of the objection and later appeal.

[15] General assertions cannot establish irreparable harm. They essentially prove nothing:

It is all too easy for those seeking a stay in a case like this to enumerate problems, call them serious, and then, when describing the harm that might result, to use broad, expressive terms that essentially just assert – not demonstrate to the Court’s satisfaction – that the harm is irreparable.

(Stoney First Nation v. Shotclose, 2011 FCA 232 at paragraph 48.) Accordingly, “[a]ssumptions, speculations, hypotheticals and arguable assertions, unsupported by evidence, carry no weight”: Glooscap Heritage Society v. Minister of National Revenue, 2012 FCA 255 at paragraph 31.

[16] Instead, “there must be evidence at a convincing level of particularity that demonstrates a real probability that unavoidable irreparable harm will result unless a stay is granted”: Glooscap, supra at paragraph 31. See also Dywidag Systems International, Canada, Ltd. v. Garford Pty Ltd., 2010 FCA 232 at paragraph 14 ; Canada (Attorney General) v. Canada (Information Commissioner), 2001 FCA 25, 268 N.R. 328 at paragraph 12 ; Laperrière v. D. & A. MacLeod Company Ltd., 2010 FCA 84 at paragraph 17 .

[17] The Applicant is right that absolute certainty would be too high a test. But, on the other hand, general assertions and assumptions will not do: “(a)ssumptions, speculations, hypotheticals and arguable assertions, unsupported by evidence, carry no weight” (Glooscap Heritage Society v Canada (National Revenue), 2012 FCA 255 at para 31). The sponsorship application will follow its course and, if successful, the Applicant will be able to come back to Canada. No one doubts that family separation is painful but, as already found numerous times in our jurisprudence, this is an unfortunate inherent consequence that stems from the process of removal.

[18] The Court was not advised of the reasons why the sponsorship application had to be returned for redetermination in December. There is obviously no guarantee that the application will be successful. I would urge counsel for the Respondent to impress on the authorities that a request, whether it be the one that is returned for redetermination or a new one made from abroad, for sponsorship be dealt with on an expedited basis in view of the fact that the original request was made some time ago and that, evidently, the administrative decision made was defective. Fairness requires in my view that there be due dispatch in considering this matter.

[19] The Applicant’s case on irreparable harm never rises beyond generalities, speaking about medical condition, violence in Guyana or family integrity. As the Supreme Court said unequivocally in Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 SCR 909, “(t)here will inevitably be some hardship associated with being required to leave Canada. This alone will not generally be sufficient to warrant relief on humanitarian and compassionate grounds under s. 25(1)” (at para 23). The same can be said of a sponsorship application.

[20] Finally, the balance of convenience prong includes the consideration of section 48 of the Immigration and Refugee Protection Act, SC 2001, c 27 [Act]. The Act speaks of the removal order that must be enforced as soon as possible. The integrity of the immigration system is at stake because, once Parliament has spoken, there is the risk of a loss of public confidence in the system if the prompt removal mandated by legislation is not taken with appropriate seriousness.

ORDER in IMM-103-23

THIS COURT ORDERS:

1. The motion for a stay of execution of a removal order scheduled for January 12, 2023 is dismissed.

"Yvan Roy"

Judge

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:

IMM-103-23

STYLE OF CAUSE:

KAREN DRUPATTIE RAMDASS v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS

PLACE OF HEARING:

HELD BY VIDEOCONFERENCE

DATE OF HEARING:

JANUARY 10, 2023

ORDER AND REASONS:

ROY J.

DATED:

JANUARY 11, 2023

APPEARANCES:

Zoe Su Wen Chong

Barbara Jackman

For The Applicant

Nick Continelli

For The respondent

SOLICITORS OF RECORD:

Jackman & Associates

Toronto, Ontario

For The Applicant

Attorney General of Canada

Toronto, Ontario

For The respondent