Jozsefne v. Canada (Minister of Public Safety and Emergency Preparedness) et al., 2008 FC 1411

• Judge: Shore, J.
• Court: Federal Court (Canada)
• Case Date: December 22, 2008
• Jurisdiction: Canada (Federal)
• Citations: 2008 FC 1411;(2008), 348 F.T.R. 233 (FC)

Jozsefne v. Can. (2008), 348 F.T.R. 233 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2009] F.T.R. TBEd. JA.009

Kakonyi Jozsefne (demanderesse) v. Le Ministre de la Sécurité Publique et de la Protection Civile et le Ministre de la Citoyenneté et de l'Immigration (défenderesse)

(IMM-4010-08; 2008 CF 1411; 2008 FC 1411)

Indexed As: Jozsefne v. Canada (Minister of Public Safety and Emergency Preparedness) et al.

Federal Court

Shore, J.

December 23, 2008.

Summary:

The applicant, a citizen of Hungary, arrived in Canada in November 2001 and claimed refugee status. The Refugee Protection Division denied her claim. The applicant's application for a pre-removal risk assessment was rejected. In August 2005, the applicant filed an application for exemption based on humanitarian and compassionate (H&C) considerations. A visa officer rejected the H&C application. A removal order issued. The applicant applied for judicial review of the rejection of the H&C application. She moved for a stay of the removal order.

The Federal Court dismissed the motion.

Aliens - Topic 1206

Admission - Immigrants - General - Upon compassionate or humanitarian grounds - [See first Aliens - Topic 1800 ].

Aliens - Topic 1800

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Deportation or removal order - Stay of (incl. termination of stay) - The applicant, a citizen of Hungary, arrived in Canada in November 2001 and claimed refugee status - The Refugee Protection Division (RPD) denied her claim - The applicant's application for a pre-removal risk assessment was rejected - In August 2005, the applicant filed an application for exemption based on humanitarian and compassionate (H&C) considerations - The applicant cited (a) the ties she had formed with Canada since arriving in 2001: her employment history, sound management of her finances, her volunteer activities, the fact that one of her daughters was a permanent resident, and the fact that she lived in Canada with her son, who was also without status in Canada and (b) the same risks of her returning to Hungary as those alleged in support of her refugee protection claim, which was rejected by the RPD in June 2003 - A visa officer rejected the H&C application - A removal order issued - The applicant applied for judicial review of the rejection of the H&C application - She moved for a stay of the removal order, asserting that there were serious issues to be tried in the application, i.e., whether the officer's decision was well founded - The Federal Court dismissed the motion - After assessing the situation in Hungary and the applicant's personal circumstances, the officer concluded that the applicant had not established risks of her returning that would constitute unusual and undeserved or disproportionate hardship - In her reasons, the officer clearly set out the reasons supporting her negative conclusions - These reasons were legally valid and were based on the evidence that was before her - There was no serious issue to be tried - See paragraphs 19 to 30.

Aliens - Topic 1800

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Deportation or removal order - Stay of (incl. termination of stay) - The applicant, a citizen of Hungary, arrived in Canada in November 2001 and claimed refugee status - The Refugee Protection Division (RPD) denied her claim - The applicant's application for a pre-removal risk assessment (PRRA) was rejected - In August 2005, the applicant filed an application for exemption based on humanitarian and compassionate (H&C) considerations - A visa officer rejected the H&C application - A removal order issued - The applicant applied for judicial review of the rejection of the H&C application - She moved for a stay of the removal order - The Federal Court dismissed the motion - With regard to irreparable harm, in her short brief the applicant alleged, in general terms and on the basis of documentary evidence that was not recent (2002 and 2003), that she would suffer irreparable harm because she feared for her life in Hungary - This harm alleged consisted of the same facts and risks that were adduced before the RPD and found to be not credible - As well, the applicant cited the same risks in support of her application for a PRRA and in her application for exemption based on H&C considerations - The officers also concluded that the applicant had not established that she personally would be at risk in Hungary - The risks alleged before the RPD, presented to the PRRA officer, and presented to the officer in the application for exemption based on H&C considerations, all of which risks were found to be not credible or unsatisfactory, could not constitute irreparable harm - See paragraphs 31 to 42.

Aliens - Topic 1800

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Deportation or removal order - Stay of (incl. termination of stay) - The applicant, a citizen of Hungary, arrived in Canada in November 2001 and claimed refugee status - The Refugee Protection Division (RPD) denied her claim - The applicant's application for a pre-removal risk assessment (PRRA) was rejected - In August 2005, the applicant filed an application for exemption based on humanitarian and compassionate (H&C) considerations - A visa officer rejected the H&C application - A removal order issued - The applicant applied for judicial review of the rejection of the H&C application - She moved for a stay of the removal order - The Federal Court dismissed the motion - The balance of convenience favoured the respondents where the applicant had not established the existence of either a serious issue to be tried or irreparable harm - Further, s. 48(2) of the Immigration and Refugee Protection Act imposed a duty on the respondents to enforce a removal order as soon as reasonably practicable - Finally, the fact that the applicant had exercised a number of remedies since arriving in Canada, and all had been unsuccessful, could be taken into consideration in determining the balance of convenience - See paragraphs 43 to 47.

Cases Noticed:

Toth v. Minister of Employment and Immigration (1998), 86 N.R. 302; 11 A.C.W.S.(3d) 440 (F.C.A.), appld. [para. 1].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 13].

Gazlat v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 377; 167 A.C.W.S.(3d) 378; 2008 FC 532, refd to. [para. 13].

Barzegaran v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 465; 2008 FC 681, refd to. [para. 13].

Quiroa et al. v. Canada (Minister of Citizenship and Immigration) (2007), 312 F.T.R. 262; 2007 FC 495, refd to. [para. 16].

Doumbouya v. Canada (Minister of Citizenship and Immigration) (2007), 325 F.T.R. 186; 2007 FC 1186, refd to. [para. 16].

Akinbowale v. Canada (Minister of Citizenship and Immigration) (2007), 320 F.T.R. 100; 2007 FC 1221, refd to. [para. 16].

Djerroud v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 664; 160 A.C.W.S.(3d) 881; 2007 FC 981, refd to. [para. 17].

Serda et al. v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 209; 146 A.C.W.S.(3d) 1057; 2006 FC 356, refd to. [para. 18].

Souici v. Canada (Minister of Citizenship and Immigration) (2007), 308 F.T.R. 111; 2007 FC 66, refd to. [para. 19].

Keita v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 702; 2006 FC 1186, refd to. [para. 19].

Benjamin v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 366; 149 A.C.W.S.(3d) 140; 2006 FC 582, refd to. [para. 19].

Buio v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 72; 2007 FC 157, refd to. [para. 23].

Samsonov v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 694; 157 A.C.W.S.(3d) 822; 2006 FC 1158, refd to. [para. 23].

Diallo v. Canada (Minister of Citizenship and Immigration) et al. (2007), 317 F.T.R. 179, 2007 FC 1062, refd to. [para. 25].

Davoudifar v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 194; 2006 FC 316, refd to. [para. 28].

Lim v. Canada (Minister of Citizenship and Immigration), [2002] F.T.R. Uned. 884; 116 A.C.W.S.(3d) 929; 2002 FCT 956, refd to. [para. 28].

Herrada et al. v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 897; 157 A.C.W.S.(3d) 412; 2006 FC 1003, refd to. [para. 29].

Lee v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 259; 138 A.C.W.S.(3d) 350; 2005 FC 413, refd to. [para. 29].

Malagon v. Canada (Minister of Citizenship and Immigration) et al., [2008] F.T.R. Uned. 913; 2008 FC 1068, refd to. [para. 34].

Knyasko et al. v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 500; 2006 FC 844, refd to. [para. 34].

Radji et al. v. Canada (Minister of Citizenship and Immigration) et al. (2007), 308 F.T.R. 175; 2007 FC 100, refd to. [para. 40].

Ramratran v. Canada (Minister of Public Safety and Emergency Preparedness) et al., [2006] F.T.R. Uned. 226; 146 A.C.W.S.(3d) 1033; 2006 FC 377, refd to. [para. 40].

Melo v. Canada (Minister of Citizenship and Immigration) (2000), 188 F.T.R. 39; 96 A.C.W.S.(3d) 278 (T.D.), refd to. [para. 40].

Singh v. Canada (Minister of Citizenship and Immigration) (2001), 110 A.C.W.S.(3d) 1113; 2001 FCTD 1376, refd to. [para. 41].

Selliah et al. v. Canada (Minister of Citizenship and Immigration), [2004] N.R. Uned. 132; 132 A.C.W.S.(3d) 547; 2004 FCA 261, refd to. [para. 42].

Canada (Minister of Citizenship and Immigration) v. Atwal (2004), 330 N.R. 300; 136 A.C.W.S.(3d) 109; 2004 FCA 427, refd to. [para. 45].

Counsel:

Serban Mihai Tismanariu, for the applicant;

Isabelle Brochu, for the respondent.

Solicitors of Record:

Serban Mihai Tismanariu, Montreal, Quebec, for the applicant;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This motion was heard on December 22, 2008, by teleconference at Ottawa, Ontario, by Shore, J., of the Federal Court, who delivered the following judgment on December 23, 2008.