FERRANDO ANHONY BROWN Applicant v. THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS, 2019 FC 486

Date: 20190417 Docket: IMM-2426-19 Citation: 2019 FC 486 Toronto, Ontario, April 17, 2019 PRESENT: The Honourable Mr. Justice Roy BETWEEN:FERRANDO ANHONY BROWNApplicantandTHE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESSRespondent ORDER AND REASONS [1] Ferrando Anthony Brown seeks a stay for his removal to his country of nationality, Jamaica. He has been ordered to report to theLester B. Pearson Airport on April 19, 2019. He was so advised on April 1, 2019, but his application for a deferral to the removal officerwas only perfected on April 12.

In spite of the lateness, the Court chose to hear the matter late on April 16. [2] Surprisingly, the motion record, which comprises 432 pages, does not tell much about the immigration history of this case. Instead,the applicant focuses the attention on Mr. Brown’s alleged mental health status, the interests of his children, and the outstanding legalproceedings in Ontario in an attempt to justify a deferral, which was denied on April 16. [3] I note a negative PRRA decision dated June 10, 2016, which was served on this applicant on February 22, 2019.

A leave applicationfor judicial review was filed on March 11, 2019, and perfected on April 10, 2019. There is also pending an H & C application.

Thedeferral request has been a moving target as new information has been trickling in on various dates: March 26, April 1, April 3, April 5,April 12 and April 15, 2019. [4] In order to be successful, the applicant must satisfy the Court that he meets the three-prong test of RJR-MacDonald Inc. v Canada(Attorney General) (SCC), [1994] 1 SCR 311, applied in the immigration context since at least Toth v Canada(Minister of Employment and Immigration) (1988), (FCA), 86 NR 302 (FCA): 1. is there a serious issue to be addressed in the underlying judicial review? 2. will there be irreparable harm if the stay is not granted? 3. does the balance of convenience lie in favour of the applicant?

In order to prevail, the applicant must satisfy each of the prongs. In my view, the applicant satisfied none of them. [5] No one doubts that hardship is associated with having to leave Canada (Kanthasamy v. Canada (Minister of Citizenship andImmigration), 2015 SCC 61, [2015] 3 SCR 909), but someone who is in this country without status does not have a right to stay. In thecase at bar, Mr. Brown came to Canada at a young age but never became a Canadian citizen. Indeed, he declared in his affidavit that hefound out when he was 19 that he was not a Canadian citizen, yet he did not acquire citizenship subsequently.

He is now 28 years old.Mr. Brown states that his mother, who sought "“Canadian landed immigrant status in 2006”" (Mr. Brown’s affidavit, para. 37) was sentback to Jamaica in 2009. Mr. Brown must have been aware of the precarity of his immigration status because he chose not to attend hismother’s funeral in Jamaica in 2015 for fear of being prohibited to come back to Canada (Mr. Brown’s affidavit, para. 43). [6] The applicant is now the father of four children, aged 10, 8, 3 and one year old; they are all Canadian citizens.

For reasons that arenot explained, the applicant and his spouse moved from Toronto, where they lived all their lives, to Windsor, in Ontario, some nine yearsago. [7] It appears from his affidavit that the applicant had some employment in Toronto when he was 17 years of age. He has not beenemployed since. [8] The applicant’s third child was born in August 2015.

In December 2015, the applicant was charged with assaulting his second son.The Children’s Aid Society was involved because of the school’s intervention and the charges then laid resulted in a conditionaldischarge (found guilty but not convicted) associated with a probation order for 36 months. Both were imposed on March 28, 2018. [9] The applicant was not allowed to live with his spouse and children while the criminal proceedings were ongoing.

It seems that theapplicant has been allowed to live with the family only since last August, but the family is still supervised by the Children’s Aid Societyunder court proceedings and Mr. Brown’s spouse has custody of the four children. The next court appearance will be later this year(June). [10] Mr. Brown argues that it is in the best interests of the children that he remains with them. He also suffers from anxiety anddepression and does not know about the availability of health services in Jamaica.

Finally, he raises the fact that there are courtproceedings ongoing in this country. [11] The Children’s Aid Society reported 12 days ago the progress achieved by Mr. Brown concerning the child protection concerns.His family doctor confirmed on April 3, 2019 that his patient suffers "“from a recurrence of acute severe anxiety and depression due tosignificant stressors related to possible deportation from Canada. Symptoms including hypersomnolence, decreased concentration, low

energy, anhedonia and depressed mood”". Mr. Brown was prescribed an anti-depressant. The doctor notes that Mr. Brown "“did notendorse suicidal ideation”", but there is a risk, he says, of suicidal ideation in view of his anxiety and depressed mood. As late as April15, the counsel appointed representative of the Office of the Children’s Lawyer (representing the three older children) confirmed thenegative impact on the children of their father’s removal. Finally, we are advised that Mr.

Brown and the mother of the four childrenwere married three weeks ago, on March 25, 2019. [12] Other than a negative PRRA decision which is now the subject of a leave application perfected one week ago, it seems that there isan H & C application pending, but not much is highlighted about these highlighted proceedings, in these stay proceedings. [13] Mr. Brown can become a permanent resident of Canada. However, to do so he must make his application before entering Canada(s.11 of the Immigration and Refugee Protection Act, SC 2001, c. 27). For reasons unknown, he has failed to address the issue.

He is nowto be removed from Canada. [14] An applicant has the burden of satisfying a court that the decision-maker’s decision to refuse a deferral has a likelihood of beingoverturned (Wang v. Canada (Minister of Citizenship and Immigration) [2001] 3 FC 682, 2001 FCT 148). As the Federal Court ofAppeal put it in Baron v. Canada (Minister of Public Safety and Emergency Preparedness), [2010] 2 FCR 311, 2009 FCA 81, theapplicant must put forward quite a strong case, keeping in mind that the standard of review of a removal officer’s decision isreasonableness.

To put it another way, the applicant must show that it is likely that the removal’s deferral was unreasonably denied: [67] While I agree entirely with my colleague’s approach to the “serious issue” prong of the tripartite test in the context ofa motion to stay a removal order, I would add the following.

In determining whether a serious issue exists so as to warrantthe granting of a stay of removal, the Judge hearing the motion should clearly have in mind, first of all, that the discretion todefer the removal of a person subject to an enforceable removal order is limited, as explained in Simoes, above, and,particularly, in Wang, above. Second, the Judge should also have in mind that the standard of review of an enforcementofficer’s decision is that of reasonableness. Thus, for an applicant to succeed on a judicial review challenge of such adecision, he or she must be able to put forward quite a strong case.

In my view, the appellants herein clearly did not havesuch a case to put forward. [15] As is well-known, the jurisdiction of a removal officer is limited. It is the timing of the removal that is considered, not whether ornot a removal ought to be executed (Simoes v. Canada (Minister of Citizenship and Immigration), (FC), 2000 7 ImmLR (3d) 141, as endorsed in Baron (supra) at para. 49). There has not been any supportable argument that Mr. Brown’s removal shouldbe deferred for a period of time.

His anxiety and depression are related to his deportation and there is no evidence that they rise to thelevel of an illness that requires that there be a pause in the process leading to his removal. The removal officer`s decision is reasonable. [16] The best interests of the children is of course a consideration. As the Kanthasamy Court suggested, children are not deserving ofhardship (para. 41). Indeed they are the victims in too many sorry situations. However, the same Court agreed with the Baker Court(Baker v.

Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817) that the best interests of thechildren must not always outweigh other consideration. "“The “best interests” principle is “highly contextual” because of the “multitudeof factors that may impinge on the child’s best interest”:”" (Kanthasamy, para. 35).

The Federal Court of Appeal in Baron, at paragraph57, found: [57] With respect to the best interests of the children, they state that the officer ought to have deferred their removalpending the determination of their H&C application so as to fulfill Canada’s obligations under the Convention on the Rightsof the Child [November 20, 1989, [1992] Can. T.S. No. 3]. In my view, this argument is without merit. The enforcementofficer considered the children’s best interests and concluded that no serious practical impediment existed to preventremoval of their parents to Argentina.

The fact that the appellants intend to take their children with them to Argentina andthat the children might not be able to return until their parents regularize their status in Canada or until they become adults isnot, in my view, an impediment to the removal of the parents. The jurisprudence of this Court has made it clear that illegalimmigrants cannot avoid the execution of a valid removal order simply because they are the parents of Canadian-bornchildren (see: Legault v.

Canada (Minister of Citizenship and Immigration), 2002 FCA 125 , [2002] 4 F.C. 358,paragraph 12; see also with respect to international law:Baker v. Canada (Minister of Citizenship and Immigration), (FCA), [1997] 2 F.C. 127 (C.A.); Langner v. Canada (Minister of Citizenship and Immigration) (1995), 29C.R.R. (2d) 184 (F.C.A.)). I might add that the officer went further than required in her consideration of the children’s bestinterests. As I stated in Simoes, above, an enforcement officer has no obligation to substantially review the children’s bestinterest before executing a removal order.

I believe that Pelletier J.A.’s reasons in Wang, above, support this view. [17] In the case at bar, the issue is not that four Canadian children will have to follow their parents. Here, they will stay in Canada withtheir mother, who has obviously been the primary care-giver, as they are all Canadian citizens. There is not much debate that children’sinterest is in staying with both parents. But in this case, not only has Mr.

Brown been away from the family cell for close to three yearsbecause of the assault on one of the children, but he appears to have been unemployed since the age of 17, thus providing limitedfinancial support. If the absence of Mr. Brown from December 2015 until August 2018 was certainly not ideal, it cannot be said eitherthat his absence until his immigration situation has been regularized from Jamaica is ideal. But as already indicated, the situation of thechildren is not determinative of the outcome.

The facts of this case are such that the requirement of "“quite a strong case”" has not beenmet. [18] Counsel for Mr. Brown raised at the hearing of the stay application that his removal is prevented in view of

section 50(

b) of theImmigration and Refugee Protection Act (the Act): 50 A removal order is stayed (

b) in the case of a foreign national sentenced to a term of imprisonment in Canada, until the sentence is completed; Counsel was not able to substantiate the use of s. 50(b). Mr. Brown was not sentenced to a term of imprisonment. He benefited from aconditional discharge in that, although found guilty, he was not convicted by a criminal court. Counsel argued that the removal officer

contravened the directive given to him in ENF 10 Removals where, among other things, instructions are given about the application s.50(

b) of the Act. Counsel points to s. 50(

b) applying when a person subject to a removal order is "“serving a conditional sentence orderin the community”". Unfortunately, this is conflating a conditional sentence, which limits the liberty of a convicted person and is oftenreferred to as "“house arrest”", and a conditional discharge, which is completely different and avoids a conviction. A conditionalsentence is simply not a conditional discharge. The argument is without merit.

Similarly, there was no convincing suggestion that thecourt ordered supervision of the family by the Children’s Aid Society would be directly contravened by the enforcement of the removalorder, such that the removal order was statutorily stayed. [19] In my view, there is no serious issue that should prevent the removal of the applicant. The likelihood of success of the underlyingjudicial review application has not been established. [20] The "“irreparable harm”" part of the tripartite test did not fare better. It is worth noting that "“irreparable harm”" cannot be based ongeneral assertions.

In Gateway City Church v. Canada (National Revenue), 2013 FCA 126, Stratas J.A. stressed the following: [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 theMinister to protect the public interest in appropriate circumstances by publishing her notice and revoking a registration evenbefore 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, whendescribing the harm that might result, to use broad, expressive terms that essentially just assert – not demonstrate to theCourt’s satisfaction – that the harm is irreparable. (Stoney First Nation v. Shotclose, 2011 FCA 232at paragraph 48.) Accordingly, “[a]ssumptions, speculations, hypotheticalsand arguable assertions, unsupported by evidence, carry no weight”: Glooscap Heritage Society v.

Minister of NationalRevenue, 2012 FCA 255at paragraph 31. [16] Instead, “there must be evidence at a convincing level of particularity that demonstrates a real probability thatunavoidable irreparable harm will result unless a stay is granted”: Glooscap, supra at paragraph 31. See also DywidagSystems International, Canada, Ltd. v. Garford Pty Ltd., 2010 FCA 232 at paragraph 14;Canada (AttorneyGeneral) v. Canada (Information Commissioner), 2001 FCA 25, 268 N.R. 328 at paragraph 12; Laperrière v. D. & A.MacLeod Company Ltd., 2010 FCA 84at paragraph 17. [21] Despite the best effort deployed by counsel for Mr.

Brown, who made no less than six successive attempts to improve his recordfor a deferral, the evidence offered never rose higher than general assertions, as if the absence of the father who has been excluded fromthe family cell for some three years was sufficient to defer for a time Mr. Brown’s removal. Seeking a deferral of a removal is notequivalent of an H & C application. Indeed, the mere existence of an H & C application did not constitute a bar to the execution of avalid removal order. I cannot find in the submissions made in this case where the irreparable harm is to be found.

The mere fact that thefather will live in Jamaica cannot suffice. If that were otherwise, it would be impossible to remove from Canada anyone who has childrenborn in Canada (see Baron, para. 57 as reproduced at para. 16 of these reasons). This is not irreparable harm, so much as the unfortunatehardship associated with having to leave Canada. [22] The Act provides at s. 48 that "“the order must be enforced as soon as possible”". There is a public interest in having these ordersexecuted. In this case, the balance of convenience favours the removal of the applicant.

As noted by Crown counsel, the applicant maybe sponsored from Jamaica by his wife and they may invoke humanitarian and compassionate consideration if the sponsorshipapplication is hampered by some applicable criteria or obligation. But the integrity of the immigration regime is such that the applicationof the law must prevail in this case. [23] The removal officer’s jurisdiction is limited to postponing the removal of someone faced with a removal order. It is in that sensethat the discretion of a removal officer is said to be limited.

Factors such as illness, children’s school year, and possibly an H & Capplication that would have been in the system for an inordinate amount of time would be considered for a deferral to be granted. InBaron (supra), the Court of Appeal agreed with Pelletier J. (as he then was) in Wang (supra) in the following terms: – There are a range of factors that can validly influence the timing of removal on even the narrowest reading of

section 48,such as those factors related to making effective travel arrangements and other factors affected by those arrangements, suchas children’s school years and pending births or deaths. – The Minister is bound by law to execute a valid removal order and, consequently, any deferral policy should reflect thisimperative of the Act. In considering the duty to comply with

section 48, the availability of an alternate remedy, such as aright to return, should be given great consideration because it is a remedy other than failing to comply with a positivestatutory obligation.

In instances where applicants are successful in their H&C applications, they can be made whole byreadmission. – In order to respect the policy of the Act which imposes a positive obligation on the Minister, while allowing for somediscretion with respect to the timing of a removal, deferral should be reserved for those applications where failure to deferwill 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. – Cases where the only harm suffered by the applicant will be family hardship can be remedied by readmitting the person tothe country following the successful conclusion of the pending application. [emphasis in the original]

[ 24 ] This application fails on all three fronts. ORDER THIS COURT ORDERS that the application for a stay of the execution of the removal order is dismissed. “Yvan Roy” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-2426-19 STYLE OF CAUSE: FERRANDO ANTHONY BROWN v THE MINISTER OF public safety and emergency preparedness PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: April 16, 2019 JUDGMENT AND REASONS: roy J. DATED: APRIL 17, 2019 APPEARANCES: Mary Jane Campigotto For The Applicant Charles J.

Jubenville FOR THE RESPONDeNT SOLICITORS OF RECORD: Mary Jane Campigotto Barrister and Solicitor Windsor, Ontario For The Applicants Attorney General of Canada Toronto, Ontario For The RESPONDENT