IMM-9071-04
2004 FC 1649
Vivekananthan Nalliah (Applicant)
v.
The Solicitor General for Canada and The Minister of Citizenship and Immigration (Respondents)
Indexed as: Nalliah v. Canada (Solicitor General) (F.C.)
Federal Court, Snider J.--Toronto, November 16, Ottawa, November 24, 2004.
Citizenship and Immigration -- Exclusion and Removal -- Removal of Refugees -- Refugee claim denied for membership in alleged terrorist group -- Leave to appeal denied -- Negative pre-removal risk assessment (PRRA) -- Judicial review to enjoin removal -- Validity of PRRAs challenged due to PRRA officers' situation within departmental structure -- Whether officers lacking independence, impartiality -- Consideration of cases in which similar arguments rejected -- Problems with applicant's submissions enumerated -- Court finding serious issue for trial but irreparable harm not demonstrated -- Enormous negative impact on Ministers if injunction granted as redoing 3700 PRRAs would severely disrupt removals system -- Balance of convenience in favour of public interest -- Court directing counsel to develop protocol for notification of putative class members.
Administrative Law -- Judicial Review -- Injunctions -- Application for leave, judicial review of pre-removal risk assessment (PRRA) for failed refugee claimant -- Seeking to enjoin removal of those receiving negative PRRAs during certain period -- Validity of PRRAs questioned based upon officers' perceived lack of independence due to situation within departmental structure -- Applicant hoping application would evolve into class action -- Case law on test for granting interlocutory injunction or stay reviewed -- History of organizational structure reviewed -- Decisions on stay applications of limited value since argued on hastily prepared basis -- Numerous problems with applicant's submissions enumerated -- Serious issue for trial but applicant not satisfying second, third prongs of tripartite test: irreparable harm, balance of convenience -- Granting injunction would impair object of statute: protection of Canadians, security of society -- Redoing 3700 PRRAs would severely disrupt removals system.
This was an application for leave and for judicial review of the negative decision of a pre-removal risk assessment (PRRA) officer. Applicant's Convention refugee claim had been denied because of his membership in an alleged terrorist organization. His application for leave to appeal the CRDD decision was also denied. The applicant hoped that the proceedings would evolve into a class action by all those who received such decisions between December 12, 2003 and October 8, 2004. The applicant asked that the Court enjoin the removal of all individuals in his situation who had not yet been removed pending judicial determination of the validity of the PRRAs or until fresh decisions are made by an independent tribunal possessed of current information. Apparently some 3700 persons were affected by this motion.
The test for granting an interlocutory injunction or stay was set out in Manitoba (Attorney General) v. Metropolitan Stores Ltd. In Toth v. Canada (Minister of Employment and Immigration), the Federal Court of Appeal held this conjunctive tripartite test applicable to deportation stays. Under that test, an applicant must establish (1) serious issue for trial; (2) irreparable harm; and (3) the balance of convenience favours the applicant. There was also a question as to whether this Court had jurisdiction to extend relief to proposed class members and, if so, whether it should be expanded to the putative class. A final question was whether notice should be sent to putative class members.
This application was based upon the placement of PPRA officers within structure of two government departments. When the IRPA came into force, a person subject to a removal order could apply to the Minister for protection; the decision- making duties were delegated to PRRA officers. From June 28, 2002 to December 12, 2003 these officers were part of the CIC structure at the department of the Minister of Citizenship and Immigration. But when the Canada Border Services Agency (CBSA) was established on December 12, 2003, under the Public Service Rearrangement and Transfer of Duties Act, PRRA decision-making responsibility was assigned to the CBSA although that did not even involve a physical move by the officers, whose terms and conditions of employment by Treasury Board were unchanged. Yet another reorganization took place on October 8, 2004 when PRRA decision-making responsibilities returned to CIC.
Held, the application should be denied.
Applicant's point on the serious issue for trial issue was that, during the time working under CBSA, the PRRA officers lacked independence and impartiality. The threshold to be met on the "serious issue" branch of the test is low; it need only be demonstrated that the issue is neither frivolous nor vexatious. Arguments similar to those advanced herein have been consistently rejected with respect to the period when the program came under CIC. In one such case, Dawson J., in refusing a stay, found that the PRRA office was so structured as to ensure the PRRA decision-makers' independence. Similar arguments regarding institutional bias have also been rejected for the period when the program fell under the CBSA. There was only one case in which the Court found there to be a serious issue. There was no case that was on all fours, as to both the facts and issues, with that now before the Court. By their very nature, stay applications tend to be eleventh-hour matters, argued on a hastily prepared basis, so that the reasons for order yielded little guidance.
The Court had numerous problems with applicant's submissions. (1) The CBSA is not only an enforcement agency: its duties extend to administration; (2) the PRRA officers have, since June 28, 2002, operated as a separate group not in contact with removals officers. The PRRA Unit Coordinator directs work flow but not the outcome of decisions; (3) Parliament mandated by statute that the protection and enforcement functions be included under a Minister named by the Governor in Council; (4) Parliament elected not to assign the PRRA function to an independent tribunal; (5) the evidence showed that the scheme satisfied the procedural fairness requirements established in Baker v. Canada (Minister of Citizenship and Immigration); (6) the Supreme Court has held, in Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), that the Court ought be reluctant to interfere with the structure of decision-making functions established by the executive branch of government; and (7) it could be argued that putative class members, in not raising this issue until ten months after the change to CBSA was made, had waived the right to now advance it. On the other hand, there could be a question as to whether Ocean Port is applicable in the Charter context. Considering the low threshold, the Court was willing to find a serious issue for trial.
Turning to irreparable harm, the applicant suggested that, absent an injunction, if a breach of natural justice should be found at trial, putative class members will have lost their right to the single process that ensures, in a timely way, that they are not removed to face persecution or even torture. That is because either the feared harm will have taken place or because they will have lost contact with the Government. But the test for irreparable harm is a strict one, requiring clear, convincing evidence. Merely to assert that the individual will suffer the harm claimed in a PRRA application will not suffice. A majority of the affected persons have had the benefit of a risk assessment. Applicant's case has been the subject of a review by the Immigration and Refugee Board. In an unchallenged process, decision makers have determined that most of these persons were not at risk and there was no evidence of any increased risk to the extent that lives are now in jeopardy. It was significant that a positive PRRA is accorded in only 3% of cases.
Applicant was mistaken in submitting that if an injunction is refused, the right to an effective remedy would be nugatory. A PRRA applicant who has been removed from Canada, if successful upon judicial review, is entitled to have his application reconsidered. Cases relied upon by applicant in which there was significant evidence of personalized risk were distinguished. The case law is to the effect that irreparable harm cannot be solely founded on difficulty in pursuing legal rights once removed from Canada.
While the conclusion as to absence of irreparable harm was sufficient to dispose of this matter, the balance of convenience issue was also considered. While a decision to remove applicant based on a questionable PRRA might negatively impact upon Canada's international commitments and reputation, if respondents lose this motion, the impact on the ability to remove persons who have no legal status in Canada would be enormous. Some putative class members are inadmissible for criminality. Others, who have failed upon leave applications or stay of removal applications, could have their removals postponed indefinitely. Granting an injunction would severely and negatively affect the objective of the Act: to protect Canadians and to maintain the security of Canadian society. If the PRRAs of some 3700 people have to be redone, this would severely disrupt the overall removals system. This inevitable result would be contrary to the public interest and outweigh by far the possible negative impacts upon the proposed class due to an injunction being denied. Applicant had thus failed to satisfy two prongs of the tripartite test and so the Court did not have to consider the question of its jurisdiction to grant the relief sought.
While an injunction was denied, the Court accepted applicant's point about the impossibility of locating putative class members once removed. The integrity of the putative class might be seriously impaired if there is no way of providing information to persons removed. It is unreasonable to expect them to learn of the class action. Counsel were accordingly directed to cooperate in the development of a protocol in the form of a simple notice to persons being removed along with CBSA website information.
statutes and regulations judicially
considered
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44].
| Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3(1)(h), 48(2), 97, 112(1). |
| Immigration and Refugee Protection Regulations, SOR/2002-227, s. 165. |
| Order in Council P.C. 2003-2063. |
| Public Service Rearrangement and Transfer of Duties Act, R.S.C., 1985, c. P-34. |
| United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 1F(a). |
cases judicially considered
applied:
Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110; (1987), 38 D.L.R. (4th) 321; [1987] 3 W.W.R. 1; 46 Man. R. (2d) 241; 25 Admin. L.R. 20; 87 CLLC 14,015; 18 C.P.C. (2d) 273; 73 N.R. 341; RJR-- MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311; (1994), 111 D.L.R. (4th) 385; 54 C.P.R. (3d) 114; 164 N.R. 1; 60 Q.A.C. 241; Toth v. Canada (Minister of Employment and Immigration) (1988), 6 Imm. L.R. (2d) 123; 86 N.R. 302 (F.C.A.); Hamade v. Canada (Minister of Citizenship and Immigration), IMM-7864-04, dated 29/9/04 (no reasons); Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; (1999), 174 D.L.R. (4th) 193; 14 Admin. L.R. (3d) 173; 1 Imm. L.R. (3d) 1; 243 N.R. 22; Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), [2001] 2 S.C.R. 781; (2001), 204 D.L.R. (4th) 33; [2001] 10 W.W.R. 1; 93 B.C.L.R. (3d) 1; 34 Admin. L.R. (3d) 1; 274 N.R. 116; 2001 SCC 52; Kim v. Canada (Minister of Citizenship and Immigration) (2003), 33 Imm. L.R. (3d) 95; 2003 FCT 321; Selliah v. Canada (Minister of Citizenship and Immigration), 2004 FCA 261; [2004] F.C.J. No. 1200 (QL).
distinguished:
Suresh v. Canada (Minister of Citizenship and Immigration), [1999] 4 F.C. 206; (1999), 176 D.L.R. (4th) 296; 249 N.R. 28 (C.A.); Resulaj v. Canada (Minister of Citizenship and Immigration), 2003 FC 1168; [2003] F.C.J. No. 1474 (QL); Chen v. Canada (Minister of Citizenship and Immigration) (2004), 250 F.T.R. 285; 35 Imm. L.R. (3d) 122; 2004 FC 464.
considered:
Puvanenthiram v. Canada (Solicitor General), IMM-748-04, dated 19/9/04 (no reasons).
referred to:
Borisova v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 408; (2003), 237 F.T.R. 87; 29 Imm. L.R. (3d) 163; 2003 FC 859; North American Gateway Inc. v. Canada (Canadian Radio-Television and Telecommunications Commission) (1997), 47 Admin. L.R. (2d) 24; 74 C.P.R. (3d) 156; 214 N.R. 146 (F.C.A.); Ariri v. Canada (Minister of Citizenship and Immigration), IMM-871-03, dated 12/2/03 (no reasons); Awolor v. Canada (Minister of Citizenship and Immigration), IMM-870-03, dated 12/2/03 (no reasons); Genoves v. Canada (Minister of Citizenship and Immigration), IMM-4985-02 (no reasons); Gulzar v. Canada (Minister of Citizenship and Immigration), IMM-7985-03 (no reasons); Kasmi v. Canada (Minister of Citizenship and Immigration), IMM-8942-03 (no reasons); Hussain v. Canada (Minister of Citizenship and Immigration), IMM-7652-03 (no reasons); Rajalingam v. Canada (Solicitor General), IMM-6957-04, dated 10/8/04 (no reasons); Singh v. Canada (Minister of Citizenship and Immigration), IMM-724-04 (no reasons); Grant v. Canada (Minister of Citizenship and Immigration), 2002 FCT 141; [2002] F.C.J. No. 191 (QL); Duve v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 387 (T.D.) (QL); Mikhailov v. Canada (Minister of Citizenship and Immigration) (2000), 191 F.T.R. 1 (F.C.T.D.); Frankowski v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 935 (T.D.) (QL); Csanyi v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 758 (T.D.) (QL); Atakora v. Canada (Minister of Employment and Immigration) (1993), 68 F.T.R. 122 (F.C.T.D.); Membreno-Garcia v. Canada (Minister of Employment and Immigration), [1992] 3 F.C. 306; (1992), 93 D.L.R. (4th) 620; 7 Admin. L.R. (2d) 38; 55 F.T.R. 104; 17 Imm. L.R. (2d) 291 (T.D.); Smith v. Canada (Minister of Employment and Immigration) (1992), 58 F.T.R. 292; 18 Imm. L.R. (2d) 71 (F.C.T.D.).
APPLICATION for an order suspending the effect of all negative PRRAs decided between December 12, 2003 and October 8, 2004, an injunction against removals and providing directions for communication with members of a putative class. Motion denied except as to last-mentioned relief sought.
appearances:
Lorne Waldman, Krassina Kostadinov and D. Clifford Luyt for applicant.
Marie-Louise Wcislo, Rhonda M. Marquis, Angela Marinos and Anshumala Juyal for respondents.
solicitors of record:
Waldman & Associates, Toronto, for applicant.
Deputy Attorney General of Canada for respondents.
The following are the reasons for order rendered in English by
[1]Snider J.: The moving party in this case, Mr. Vivekananthan Nalliah, has commenced an application to this Court for leave and judicial review of a negative decision dated September 9, 2004 (delivered to Mr. Nalliah on October 15, 2004) by a pre-removal risk assessment (PRRA) officer. He hopes that this judicial review will evolve into a class action including as plaintiffs all individuals who received negative PRRA decisions made between December 12, 2003 and October 8, 2004. In this motion, Mr. Nalliah seeks an order of this Court:
(a) suspending the effect of all negative PRRAs decided between December 12, 2003 and October 8, 2004 until this Court has finally determined the validity of the PRRAs or until new PRRA decisions are made by an independent tribunal based on up-to-date information, whichever comes first;
(b) enjoining the respondents from removing from Canada all individuals whose negative PRRA decisions were made between December 12, 2003 and October 8, 2004 and who still remain in Canada, until this Court has finally determined the validity of the PRRAs or until new PRRA decisions are made by an independent tribunal based on up-to-date information, whichever comes first; and
(c) providing directions to all parties to the proceedings as to how they should communicate with members of the putative class.
[2]Also before me for the purposes of this motion were five other motions dealing with the same subject-matter. Upon agreement of counsel, the motion record of Mr. Nalliah was used throughout oral arguments with the understanding that the results of this motion would apply to all six motions.
[3]The background of Mr. Nalliah's history with Canada's immigration system is set out in brief summary form in Appendix A to these reasons. Appendix A also sets out a similar history for each of the other five moving parties. The respondents advise that there are approximately 3700 people whose PRRA applications were decided during the period of December 12, 2003 to October 8, 2004 and who are, therefore, affected by this motion.
ISSUES
[4]The test to be applied when determining whether or not to grant an interlocutory injunction or stay is the conjunctive tripartite test that has been set out in Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110 and RJR--MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311.
[5]In Toth v. Canada (Minister of Employment and Immigration) (1988), 6 Imm. L.R. (2d) 123, at page 128, the Federal Court of Appeal held that the same three-stage test applied to stays of deportation. Accepting the applicability of this test to the present motion, Mr. Nalliah must satisfy me that:
1. There is a serious issue to be tried in the underlying application;
2. Mr. Nalliah and the other affected persons will suffer irreparable harm if the relief is not granted; and,
3. The balance of convenience, considering the total situation of both parties, favours Mr. Nalliah and the other persons.
[6]In this case, there are issues related to the proposed class action. There is a question of this Court's juris-diction with respect to each of the elements of relief sought in respect of the proposed class members. That is, if I determine that the relief should be granted for Mr. Nalliah, am I able to extend it to all members of the proposed class?
[7]If I find that the requested relief ought to be granted with respect to Mr. Nalliah and that I have jurisdiction to extend the requested relief, the further question is whether it should be expanded to the putative class as it was in Borisova v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 408 (F.C.).
[8]Finally, regardless of whether the balance of the injunctive relief is granted, there is the issue of whether a notice should be sent to members of the putative class.
BACKGROUND
[9]This motion, the underlying application for judicial review and the proposed class action all relate to the placement of PRRA officers within the structure of two government departments, the departments of the Solicitor General (SGC) and Citizenship and Immigration Canada (CIC). The allegations of the affected persons arise out of the following sequence of events:
1. As of June 28, 2002, the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) came into effect and included subsection 112(1) which provides that:
112. (1) A person in Canada, other than a person referred to in subsection 115(1), may, in accordance with the regulations, apply to the Minister for protection if they are subject to a removal order that is in force or are named in a certificate described in subsection 77(1).
This provision is the genesis of PRRAs. The Minister's decision-making function was delegated to the individual PRRA officers.
2. For a period of about 17 months--from June 28, 2002 until December 12, 2003--the PRRA officers were part of the structure of CIC within the department of the Minister of Citizenship and Immigration.
3. On December 12, 2003, the Government created the Canada Border Services Agency (CBSA) with the responsible Minister for the new agency being the Solicitor General (Order in Council P.C. 2003-2063, made pursuant to Public Service Rearrangement and Transfer of Duties Act [R.S.C., 1985, c. P-34]). Staff of the new agency were transferred from Canada Customs and Revenue Agency, CIC and the Canadian Food Inspection Agency. Responsibility for PRRA decision-making was moved to CBSA from CIC. This did not require a physical move of the PRRA officers. For the transferred CIC employees, including the PRRA officers, there was no change in existing terms and conditions of employment and Treasury Board continued as their employer.
4. A further reorganization took place on October 8, 2004 when the PRRA decision-making responsibilities were transferred back to CIC. Once again there were no changes to the physical location of the officers, their terms and conditions of employment or their employer.
ANALYSIS OF TRIPARTITE TEST ELEMENTS
Serious Issue
[10]The first prong of the test for granting the relief sought is whether Mr. Nalliah raises a serious issue for trial. Mr. Nalliah submits that the serious issue for trial is raised by the lack of independence and impartiality of PRRA officers during the 10 months that they operated within the CBSA.
[11]The threshold to be met by an applicant for the "serious issue" branch of the test for granting injunctive relief is low (North American Gateway Inc. v. Canada (Canadian Radio-Television and Telecommunications Commission) (1997), 47 Admin. L.R. (2d) 24 (F.C.A.)). It is not the job of the Court at this early stage of the proceedings to evaluate the merits of the issue but to establish, upon review of the record and submissions of parties, that the issue is not frivolous or vexatious.
[12]In determining whether an issue meets that low standard, I should be guided by a review of any jurisprudence that may have considered this question.
[13]This Court has considered similar arguments challenging the independence of the PRRA program while it was under the responsibility of CIC and has consistently rejected those arguments (Ariri v. Canada (Minister of Citizenship and Immigration) (February 12, 2003), IMM-871-03 (F.C.T.D.); Awolor v. Canada (Minister of Citizenship and Immigration) (February 12, 2003), IMM-870-03 (F.C.T.D.); Genoves v. Canada (Minister of Citizenship and Immigration), IMM-4985-02 (leave dismissed); Gulzar v. Canada (Minister of Citizenship and Immigration), IMM-7985-03 (stay dismissed and leave dismissed); Kazmi v. Canada (Minister of Citizenship and Immigration), IMM-8942-03 (leave dismissed); Hussain v. Canada (Minister of Citizenship and Immigration), IMM-7652-03 (leave dismissed)).
[14]In dismissing a stay application in Hamade v. Canada (Minister of Citizenship and Immigration) (September 29, 2004), IMM-7864-04 (F.C.T.D.), Justice Dawson, in relation to a CBSA PRRA determination, stated that:
Notwithstanding the low threshold, the Applicants have failed to establish that a serious issue exists. In this regard, the allegation of systematic [sic] bias has previously been found not to be a serious issue. See: Awolor v. Canada (Minister of Citizenship and Immigration), IMM-870-03 and Ariri v. Canada (Minister of Citizenship and Immigration), IMM-871-03. While these cases pre-date the most recent re-organization of the Canada Border Services Agency the evidence before the Court is to the effect that `The PRRA office is structured in such away [sic] to ensure that the independence of the PRRA decision-maker is safeguarded'.
[15]Mr. Nalliah suggests that Justice Dawson in Hamade was addressing a different issue than the one at bar or that she did not have an adequate evidentiary record before her. I do not agree that a different issue was under consideration; in substance, the issue before me is identical.
[16]Mr. Nalliah submits that this Court has already found a "serious issue" on two occasions, citing Puvanenthiram v. Canada (Solicitor General) (September 19, 2004), IMM-7148-04, and Rajalingam v. Canada (Solicitor General) (August 10, 2004), IMM-6957-04 as support. This is inaccurate with respect to one of those decisions. The Court in Puvanenthiram, did not find a serious issue on institutional bias. First, the Court's order does not reflect this and, second, the respondent consented to the injunction motion solely on the issue of the threshold of risk involved in section 97 of the and Immigration and Refugee Protection Act.
[17]This Court has also considered similar arguments alleging institutional bias while the PRRA program was under the CBSA, but found no arguable issue and dismissed the applications for leave (Singh v. Canada (Minister of Citizenship and Immigration) IMM-724-04 (leave dismissed)).
[18]This appears to leave Rajalingam, as the only case where this Court accepted a similar question as a serious issue. The issue was described as "whether the pre-removal risk assessment officers enjoy a sufficient degree of institutional independence, having regard to the nature of the functions they carry out".
[19]The best law to assist me would be a decision on a judicial review where I could compare the facts and issues to the case before me. There is no such decision. Stay applications, being brought at the eleventh hour and argued on hastily written arguments, do not, in my view, provide me with much guidance. Given that parties have more time to prepare the application record for judicial review, the record with respect to a leave application is, accordingly, more complete and should present a full argument to the judge reviewing the application. Nevertheless, without reasons, or an opportunity to review the evidence presented it is difficult to assess the applicability of the facts in those cases to the one before me. Accordingly, while the orders of this Court referred to suggest almost unanimously that there is no serious issue, I am reluctant to use them to conclude that there is no serious issue here.
[20]I am left with Mr. Nalliah's assertions and representations that there is a serious issue to be tried. I note that there are significant problems with Mr. Nalliah's arguments. Among those problems are the following:
· The CBSA is not, as asserted by Mr. Nalliah, only an enforcement agency. Its duties encompass administration as well as enforcement of certain of Canada's laws and, thus, extends beyond enforcement of removal orders.
· The PRRA officers have, since June 28, 2002 and whether in CIC or in CBSA, operated as a separate group without contact with removals officers. The PRRA Unit Coordinator directs the work flow and carries out the administrative coordination but does not direct the outcome of PRRAs.
· Parliament chose to include both enforcement and protection functions within the same statute with the Governor in Council having the authority to name the responsible Minister, thereby setting up a statutorily-mandated relationship between the two functions.
· Parliament also chose to link the removals process with the PRRA in subsection 112(1) of IRPA and did not assign the PRRA function to an independent tribunal (such as the Immigration and Refugee Board), as it could have done.
· While Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paragraph 28, stated that, to satisfy the requirements of procedural fairness, the affected person must have access to an impartial process, appropriate to the statutory, institutional and social context of the decision, the evidence before me tends to show that the Government has developed a structure within which the PRRA officers' function meets this standard.
· Jurisprudence of the Supreme Court of Canada in Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), [2001] 2 S.C.R. 781 suggests that the Court should be reluctant to interfere with the executive branch of government's structure of decision-making functions.
· By not bringing this alleged bias to the attention, first, of the decision makers and, secondly, to the Court, it is arguable that the members of the putative class have waived their rights to now raise this issue, some 10 months after the change to CBSA was made.
[21]There is one bit of evidence put forward by Mr. Nalliah that appears not to have been considered by the Court in the earlier stay motions and leave applications. That is the fact that, as of October 8, 2004, the functions were moved back to CIC. Would this have made a difference to the determinations made by Justice Dawson and others? I do not know. This move back may be significant in the context of the establishment of the factual basis for the allegation of lack of independence or impartiality. Further, I note that Ocean Port, may leave open some question as to its applicability to decisions that may affect rights under the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]]. In turn, that raises the issue of whether all of the PRRA decisions in question affect Charter rights. Mr. Nalliah and the respondents disagree on that point.
[22]In conclusion on this aspect of the tripartite test, despite the problems faced by Mr. Nalliah and the members of the putative class, the question before me that may satisfy the low threshold is whether, during the CBSA period, the PRRA officers used an impartial process, appropriate to the statutory, institutional and social context of the decision, to make PRRA decisions. On this low threshold, and on the basis of the record before me, I am prepared to find that there is a serious issue for trial.
Irreparable Harm
[23]The second branch of the tripartite test is whether the affected persons would suffer irreparable harm in the event that the injunctive relief is not granted. Mr. Nalliah argues that the putative class will suffer irreparable harm in two ways:
(a) Loss of their statutory right to a risk assessment; and
(b) Unfair reduction of the putative class.
[24]Mr. Nalliah points to a number of cases where the Court has found irreparable harm because a claimant would lose a legal right or remedy. In support of his position, Mr. Nalliah cites, among others, the following jurisprudence:
In Suresh v. Canada (Minister of Citizenship and Immigration), [1999] 4 F.C. 206 [at paragraph 13], the Court of Appeal found irreparable harm where the applicant's deportation to a country that would imprison him would remove the "right to have the merits of his or her case determined and to enjoy the benefits associated with a positive ruling".
In Resulaj v. Canada (Minister of Citizenship and Immigration), 2003 FC 1168; [2003] F.C.J. No. 1474 (QL), Justice O'Reilly concluded that removing an applicant while the legal issue related to her PRRA was explored would render nugatory any legal remedy that might ultimately be available to her. These circumstances, in his view, constituted irreparable harm.
[25]Mr. Nalliah continues by arguing that, if this injunction is not granted and a breach of natural justice is found at trial, the members of the putative class will have lost their right to the single process that ensures in a timely way that they are not removed to face persecution, torture or risk to life or cruel and unusual treatment or punishment. Either they will have lost the right because the harm that they fear will have accrued or they will have lost contact with the Government.
[26]Mr. Nalliah must support this motion with clear and convincing evidence of irreparable harm. Irreparable harm is a strict test in which a serious likelihood or jeopardy to the applicant's life or safety must be demonstrated (Grant v. Canada (Minister of Citizenship and Immigration), 2002 FCT 141, at paragraph 9; Duve v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 387 (T.D.) (QL), at paragraph 22; Mikhailov v. Canada (Minister of Citizenship and Immigration) (2000), 191 F.T.R. 1 (F.C.T.D.), at paragraphs 12-13; Frankowski v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 935 (T.D.) (QL), at paragraph 7; Csanyi v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 758 (T.D.) (QL), at paragraph 4. Irreparable harm must not be speculative nor can it be based on a series of possibilities (Atakora v. Canada (Minister of Employment and Immigration) (1993), 68 F.T.R. 122 (F.C.T.D.)).
[27]Simply alleging that the persons will suffer the harm they have claimed in their PRRA applications is not sufficient for the purposes of the test. I first note that the vast majority of the affected persons have received the benefit of a number of risk assessments. Prior to the PRAA decisions, in all cases, the affected persons have been party to earlier processes under the IRPA. Mr. Nalliah and the other five moving parties before me have all had reviews of their particular situations, including risk, by the Immigration and Refugee Board. Four of the moving parties have exercised their right to apply for a further PRAA pursuant to section 165 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations). Either in the initial refugee application or in a subsequent PRRA or other related application, the allegation of risk was dismissed in most cases. Most commonly, this was done by the Immigration and Refugee Board in the first instance and by a PRRA officer or predecessor before the transfer of the responsibilities to the CBSA. Even eliminating those PRRAs that are in issue, in an unchallenged process, decision makers have determined that most of these persons were not at risk. There is no evidence before me to show that the risk has increased since the first assessments to the point where the persons' lives are now in jeopardy. Any alleged risk, on the record before me, is speculative.
[28]Mr. Nalliah belongs to a small subgroup of the 3700 members of the putative class in that his first assessment was a positive determination by the Immigration and Refugee Board. The only negative risk assessment that he has received is the PRRA that is now in dispute. However, in the absence of specific evidence of irreparable harm, I have nothing upon which to pin a determination that he or anyone in his category of claimants would suffer irreparable harm.
[29]One helpful statistic that applies generally to all categories of claimants is that positive PRRAs are given in only about 3% of cases. This percentage did not appreciably change when the functions were moved to CBSA. Stated another way, 97% of claimants are determined not to be at risk. Absent person-specific evidence to the contrary, the evidence is that only a very small percentage of persons in the putative class would be found to be exposed to the level of risk that could result in a conclusion of irreparable harm. In my view, this makes the potential for irreparable harm very remote indeed.
[30]The second branch of Mr. Nalliah's argument is that the loss of the right to continue the litigation constitutes irreparable harm. Contrary to these submissions, if the injunction is refused, their right to an effective remedy will not be rendered nugatory. As Mr. Justice O'Reilly stated in Kim v. Canada (Minister of Citizenship and Immigration) (2003), 33 Imm. L.R. (3d) 95 (F.C.T.D.), at paragraph 9: "nothing in the Act or the Rules would interfere with the entitlement of a PRRA applicant, who has been removed from Canada and who is successful on judicial review, to have that application reconsidered".
[31]In Selliah v. Canada (Minister of Citizenship and Immigration), 2004 FCA 261, at paragraph 20, Justice Evans of the Court of Appeal stated:
Since the appeal can be ably conducted by experienced counsel in the absence of the appellants and since, if the appeal is successful, the appellants will probably be permitted to return to Canada at public expense, I cannot accept that removal renders their right of appeal nugatory.
[32]The cases of Suresh and Resulaj, referred to by Mr. Nalliah may be distinguished on the basis that, in both of those cases, there was significant evidence supporting a personalized risk. From a review of the jurisprudence, I conclude that irreparable harm cannot be solely founded on difficulty in pursuing legal rights of challenge once removed from Canada.
[33]Finally, Mr. Nalliah argues that the integrity of the class will suffer since the putative class members may not know about the class action or may not be found once removed. At this very early stage of a potential class action, this argument is merely speculation. The process to convert a judicial review application to an action and to obtain certification is far from certain. Further, should this matter proceed as Mr. Nalliah would like, there is always the possibility of applying to the Court for an order requiring notice of the class action to be served, thereby curing the problems alleged by Mr. Nalliah.
[34]In conclusion, I am of the view that Mr. Nalliah and the other affected persons have failed to establish that they would suffer irreparable harm if removed prior to the determination of the issues raised in the underlying applications or to the trial of a class action.
Balance of Convenience
[35]Given that the test for injunctive relief is conjunctive, the determination regarding irreparable harm is sufficient for me to dispose of this motion. Nevertheless, in the event that I have missed some aspect of irreparable harm, I will continue by turning my mind to whether the balance of convenience favours Mr. Nalliah and the other members of the proposed class or the respondents.
[36]In RJR--MacDonald, at paragraphs 62-63, the Supreme Court discussed how they must balance the public interest and the interest of the parties. The Court noted:
The third test to be applied. . . was described . . . as: "a determination of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction. . . ." In light of the relatively low threshold of the first test and the difficulties in applying the test of irreparable harm in Charter cases, many interlocutory proceedings will be determined at this stage.
[37]An assessment of the balance of convenience requires a weighing of interests and the factors to consider will vary from case to case. As stated by the Supreme Court in RJR--MacDonald, at paragraph 85:
Among the factors which must be considered . . . are the nature of the relief sought and of the harm which the parties contend they will suffer, the nature of the legislation which is under attack, and where the public interest lies.
[38]Mr. Nalliah submits that, if the Court is satisfied that where a serious issue and irreparable harm are made out, a balance of convenience will flow with him (Membreno-Garcia v. Canada (Minister of Employment and Immigration), [1992] 3 F.C. 306 (T.D.); see also Smith v. Canada (Minister of Employment and Immigration) (1992), 58 F.T.R. 292 (F.C.T.D.) and Suresh. This final argument can be countered quite simply since I am not satisfied that irreparable harm has been made out. Even if I were satisfied, however, I believe that the consequences to the respondents must be examined prior to making a determination on this branch of the test.
[39]In respect of this branch of the test, Mr. Nalliah's main argument is that the public interest demands that the PRRA process be a fair and impartial one. Otherwise, Canada risks sending people to countries where they could be the subject of torture or other severe consequences. In this case, Mr. Nalliah asserts that he is not just speaking for an individual but that his interests represent the public interest of all Canadians.
[40]Mr. Nalliah notes that he is not seeking to invalidate the entire PRRA process; at this stage, he raises no concern with respect to PRRA decisions completed before December 12, 2003 or after October 8, 2004. The respondents can continue to process PRRA applications within the newly reorganized CIC.
[41]With respect to the 3700 persons who have not been removed, Mr. Nalliah argues that the respondents, if they choose to proceed with removal, need only serve a new PRRA notice. In Mr. Nalliah's submission, while this will result in some delay, this cannot counterbalance the public interest in ensuring fair process.
[42]I am not persuaded by Mr. Nalliah's arguments on this issue. This branch of the test requires a balancing of the interests of both parties. I propose to do that balancing by considering the position of each party in the event that they lose this motion.
[43]I will begin with Mr. Nalliah and all the other 3700 persons who form part of this motion. If this motion is denied, all of these persons would be subject to removal as soon as is reasonablly practicable (IRPA, subsection 48(2)). However, as I have discussed above, the harm that could come to them is speculative. For some of the 3700, a further PRRA could be requested (although that does not result in an automatic stay) and that PRRA would be completed by a PRRA officer within a structure that Mr. Nalliah has acknowledged meets his standard of impartiality. Others may successfully bring an application, on humanitarian and compassionate grounds, for processing within Canada. In short, the harm that Mr. Nalliah alleges is very uncertain. However, I agree with Mr. Nalliah that his interests extend beyond the individuals that are affected and a decision to remove him on the basis of a questionable PRRA may have a negative effect on Canada's international commitments and reputation.
[44]On the other side of the equation, what will be the situation if the respondents lose this motion? Contrary to the assertion of Mr. Nalliah, the evidence before me demonstrates that the impact on the respondents and their ability to remove persons who have no legal status in Canada would be enormous. Some members of the putative class who will benefit from an injunction include individuals inadmissible to Canada due to criminality. Those who already applied for leave challenging their negative PRRA decision and lost, and those who applied for a stay of their own removal and lost (because they could not establish a serious issue or irreparable harm) will also be able to postpone their removal to some undetermined point in time. Bluntly stated--but without exaggeration--this injunction would severely and negatively affect the stated objective of the IRPA to protect the safety of Canadians and to maintain the security of Canadian society (IRPA, paragraph 3(1)(h)). This is clearly not in the public interest.
[45]Nor is it just as simple as completing new PRRAs. While CIC and the CBSA attempted to prioritize and redo PRRAs for the 3700 persons to this motion, the ongoing system of PRRAs and removals would be severely disrupted. The harm to the respondents is not speculative; I am satisfied that it would be an inevitable result of granting this injunction.
[46]When balanced, I am persuaded that the alleged negative impacts to the proposed class of individuals and, possibly, to a broader public interest if the injunction is denied is far outweighed by the negative consequences to the respondents and the Canadian public interest if the relief is granted. The balance of convenience favours the respondents.
Conclusion on tripartite test
[47]Having failed to satisfy two prongs of the test, Mr. Nalliah's request for injunctive relief will be denied.
JURISDICTION TO GRANT REQUESTED RELIEF
[48]Given my conclusion that Mr. Nalliah has failed to satisfy the test for granting the injunctive relief requested, it is unnecessary for me to address the issue of whether the injunctive relief sought is beyond the jurisdiction of this Court.
NOTICE TO THE PUTATIVE CLASS
[49]One of the requests of this motion is that I provide directions to all parties to the proceedings as to how they should communicate with members of the putative class. The effect of the denial of the injunctive relief in this motion is that the respondents will commence removal of members of the putative class. Once removed, Mr. Nalliah is concerned that they may be impossible to locate. He has a valid argument. Even though I am not persuaded that the removal results in irreparable harm, I share Mr. Nalliah's concern that the integrity of the putative class may be seriously impaired without some way of providing information to those persons who are removed.
[50]The respondents point to my comments in Chen v. Canada (Minister of Citizenship and Immigration) (2004), 250 F.T.R. 285 (F.C.), at paragraph 54 where I stated that requiring that notice be given to putative class members should happen only in exceptional circumstances. "Such circumstances can arise if a defendant is dealing with the proposed class members in a way that undermines the integrity of the class proceeding itself." In Chen, the putative class members were permanent residents of Canada, some of whom were offshore. For those offshore, they would likely be in contact with Canadian visa officers to attempt to obtain travel authorizations to return to Canada. Thus, the putative class members could take care of themselves and the integrity of the proposed class would not suffer. Here, putative class members who are removed would not retain any ties to Canadian officials. Particularly for those who have no legal counsel, it may be unreasonable to expect them to learn of the class action. The respondents bear no blame for this; it is simply the effect of removal. In my view, these are exceptional circumstances that warrant some form of intervention.
[51]In their submissions, the respondents stated as follows:
In the alternative, if this Court finds that the possibility of the reduction of the putative class amounts to irreparable harm, and is therefore inclined to grant a "class injunction", the Court could ask the Respondents if they would be willing to provide each member of the putative class with a "potential class action information sheet" at the time of their removal from Canada. This information could contain the contact information for Mr. Waldman, reference to the CBSA website information where information on the development of the proposed class action could be posted. In such a scenario, no members of the putative class removed from Canada, would be excluded from choosing to participate in the proposed class action.
[52]Even though I am not granting the "class injunction", I believe that this suggestion has merit. Accordingly, I will direct that counsel to this motion work together to develop a protocol incorporating the elements in the above. A simple notice to persons being removed whose PRRAs were completed between December 12, 2003 and October 8, 2004 together with CBSA website information would be sufficient for notice purposes. The parties should report back to me within two weeks, hopefully with an agreement on the form of notice and related matters. If the parties cannot reach agreement, they may return to this Court for further directions.
[53]To be very clear, removals scheduled for between now and finalization of these arrangements may proceed.
CONCLUSION
[54]For the reasons above, the motion for injunctive relief will be denied. However, parties will be directed to prepare a notice to be provided to members of the putative class who are removed.
[55]For those members of the putative class whose removals were stayed pending the outcome of this proceeding, their stays will be vacated.
APPENDIX A
Nalliah (IMM-9071-04)
| -- Risk assessed twice (CRDD and PRRA)--LTTE |
| -- Removal date: November 24, 2004 (was served on November 10, 2004) |
| · Made refugee claim in 1999; CRDD excluded him in June 2002 because of LTTE membership; had CRDD not excluded him under Article 1F(a) [United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6], he would have been found to be CR. |
| · Application for leave of negative CRDD decision dismissed in October 2002 (IMM-3217-02). |
| · September 2004: negative PRRA |
Chellapah (IMM-8907-04)
| -- Risk assessed three times (one refugee claim, two PRRAs) |
| -- (Respondent agreed to defer removal until disposition of injunction) |
| · Made refugee claim in June 2000; refused in February 2002 because no credible/trustworthy evidence and no objective basis for the claim. |
| · Application for leave of negative refugee decision dismissed in July 2002 (IMM-1094-02). |
| · September 2003: refused PRRA |
| · November 2003: applicants deported to U.S.A. |
| · August 2004: applicants return to Canada and make 2nd PRRA, which is refused in September 2004; |
Sinnappu (IMM-8978-04)
| -- Risk assessed four times (CRDD, risk-based H&C, 2 PRRAs) |
| -- Court granted interim stay until disposition of injunction |
| · April 1998: refused refugee decision (no application for leave filed) |
| · December 2003: 1st negative PRRA |
| · February 2004: risk-based H&C application denied (no application for leave filed) |
| · June 2004: Snider J. grants a stay on the 1st PRRA because delay in serving him. |
| · July 2004: applicant makes 2nd PRRA |
| · October 2004: 2nd PRRA is denied and applicant seeks leave. |
Velayutham (IMM-8910-04)
| -- Risk assessed four times (CRDD, risk-based H&C, 2 PRRAs) |
| -- Respondent agreed to defer removal until disposition of injunction |
| · September 2000: refused CRDD decision (FC dismissed leave January 2001 in IMM-5063-00); |
| · August 2003: risk-based H&C denied. |
| · August 2003: 1st negative PRRA |
| · November 2003: applicants deported to U.S.A. |
| · June 2004: applicants return to Canada and make 2nd PRRA application |
| · September 2004: 2nd negative PRRA (applicants seek leave in October 2004) |
Gomez (IMM-9398-04)
| -- Risk assessed at least three times (RPD and 2 PRRAs; it is unclear whether they also have risk-based H&C) |
| -- Removal date: November 17th at 8:55 a.m. to Costa Rica |
| · May 2003: refused refugee decision |
| · October 2003: submits H&C application which is pending |
| · February 2004: 1st negative PRRA |
| · April 24, 2004: original removal date, but enforcement officer deferred removal until the end of the school year. |
| · July 2004: applicants get stay until final determination of their 2nd PRRA made in June 2004. |
| · September 2004: 2nd negative PRRA |
Subramaniam (IMM-9040-04)
| -- Risk assessed at least twice (CRDD and PRRA; it is unclear whether pending H&C application is risk-based); criminality |
| -- Removal date: November 22, 2004 (was served on November 10) |
| · November 1997: found to be CR, but status vacated in January 2004 because he never disclosed that he was also a citizen of Germany. |
| · February 2004: makes an H&C application (which is pending) |
| · October 2004: negative PRRA |