Tesoro v. Canada

Tesoro v. Canada (Minister of Citizenship and Immigration), 2005 FCA 148 (CanLII)

http://canlii.ca/t/1k8hq

• The appellant, who arrived in Canada from Italy at age 14, is a permanent resident and has never become a Canadian citizen. He is now 52. His wife, parents, siblings, nephews and nieces all live in Canada. He has no kids in Canada, but a daughter in the UK from a previous marriage. He was convicted in Canada on 33 counts of fraud, forgery and perjury, offences for which he was sentenced to 38 months’ imprisonment.
• The Appellant sought a stay pending appeal of a negative JR of an IAD decision to not reopen his IAD appeal.
• The IAD had applied IRPA’s transitional provision re: the IAD bar for serious criminality to the facts of this case, rejecting Tesoro’s appeal without hearing it.
• The Medovarski case, which upheld the bar, had just gone up to the SCC at the time of this decision and hadn’t been decided yet
Tesoro is well-known for its discussion of irreparable harm
• With respect to a “serious issue”, the Medovarski appeal means that there is a serious issue here
• Irreparable harm:

o Judge’s opinion is that the IAD would not lose jurisdiction to reopen his appeal if he were out of the country – appeal would not be rendered moot
o Judge doesn’t believe that Tesoro’s equitable claim before the IAD for a stay of deportation would be weakened by his absence from Canada pending the appeal – claim was made on the basis of separation from parents, wife, etc. in Canada, which won’t change or diminish (i.e. undermine his claim) if he is removed pending appeal
o Moreover, the error he alleges from the IAD (not reopening the appeal based on transitional provision) has nothing to do with his actual claim on equitable grounds (e.g. the separation hardships, etc.)
o In Owusu, the removal’s undermining of his H&C application was taken into account and was in fact the basis for the granting of a stay, but in that case his employment in Canada (which allowed him to provide for his children in Ghana, the basis of his claim) would be completely undermined by removal pending appeal

o [32] In approaching this issue, I would make two preliminary points. First, on a motion to stay a removal pending the disposition of an application for judicial review or an appeal, the focus is limited to the effect of the deportee’s temporary absence from Canada pending the disposition of the legal proceeding.

[34] In Selliah v. Canada (Minister of Citizenship and Immigration), 2004 FCA 261 (CanLII), at paragraph 13, I adopted the test formulated in Melo (at paragraph 21), where Pelletier J. (as he then was) held that, for separation from family to constitute irreparable harm, the hardship of removal must take “it out of the usual consequences of deportation”. Melo and Selliah were followed on this point by Richard C.J. in Atwal v. Canada (Minister of Citizenship and Immigration) (2004), 2004 FCA 427 (CanLII), 330 N.R. 300 (F.C.A.), at paragraphs 16-17.

o Court notes that there is some inconsistency in the case-law re: whether family separation amounts to irreparable harm. This is understandable because these decisions are usually made quickly. Decisions are also highly fact-specific.

o Question as to what the appropriate test is for family separation: is it “more than a mere inconvenience”/“serious impact” or is it the more exacting “more than the usual consequences of deportation”?

o [37]Further, to the extent that “serious impact” on family relationships is a less demanding test than “more than the usual consequences of deportation”, harms that qualify as irreparable under the former, but not under the latter, may not warrant a stay because, when put into the balance of convenience, they may be outweighed by the public interest in the due enforcement of the law.

o [45]Having regard to all of the above, I am not persuaded that Mr. Tesoro’s removal pending the disposition of his appeal will so disrupt his family relationships and cause such distress as to constitute an out of the ordinary consequence of deportation.

o [47] However, if I had determined that Mr. Tesoro’s removal would cause irreparable harm, on the ground that the effects of family separation were more than mere inconveniences, I would have located the harm at the less serious end of the range, and concluded that, on the balance of convenience, it was outweighed by the public interest in the prompt removal from Canada of those found to be inadmissible for serious criminality. If the administration of immigration law is to be credible, the prompt removal of those ordered deported must be the rule, and the grant of a stay pending the disposition of legal proceedings, the exception.

Tesoro cited in other case-law:

• Es-Sayyid v. Canada (Public Safety and Emergency Preparedness), 2012 FCA 59 (CanLII)

o [46] …Far from being an example of bias, this is an example of adherence to a statement by this Court that the protection of the Canadian public is a paramount factor under the balance of convenience branch: Tesoro v. Canada (Minister of Citizenship and Immigration), 2005 FCA 148 (CanLII).

Cheddesingh v. Canada (Minister of Citizenship and Immigration), 2005 FC 667 (CanLII), http://canlii.ca/t/1kx2b

o [16] The principal ground advanced on the applicant’s behalf is that her litigation position would be seriously undermined if she was no longer in the country to pursue her avenues of redress. As noted by Rothstein J.A. in El Ouardi v. Canada (Solicitor General) 2005 FCA 42 (CanLII), [2005] F.C.J. No. 189, if that argument were to be adopted as a general principle it would apply to virtually every stay motion and would deprive the Court of the discretion to decide questions of irreparable harm on the facts of each case. Nothing in Evans J.A.’s extensive review of irreparable harm issues in Tesoro v. Canada (Minister of Citizenship and Immigration) 2005 FCA 148 (CanLII), [2005] F.C.J. No.698, relied upon by the applicant, is to the contrary.

Palka v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 165 (CanLII), <http://canlii.ca/t/1wtjd>

o [12] Before considering these submissions in detail, I should emphasize that the normal hardships attendant on deportation from Canada cannot constitute irreparable harm for the purpose of the Toth test, otherwise a stay would be the norm and removal the exception: Tesoro v. Canada (Minster of Citizenship and Immigration), 2005 FCA 148 (CanLII), [2005] 4 F.C.R. 210 at para. 34. This would subvert Parliament’s intention that those subject to a valid removal order must leave immediately and the order enforced as soon as is reasonably practicable: Immigration and Refugee Protection Act, S.C. 2001, c. 27, subsection 48(2).

Sittampalam v. Canada (Citizenship and Immigration), 2010 FC 562 (CanLII), <http://canlii.ca/t/29wd0>

o [71] The comments of Justice Evans of the Federal Court of Appeal in Tesoro v. Canada (Minister of Citizenship and Immigration), 2005 FCA 148 (CanLII), [2005] 4 F.C.R. 210, where the applicant had been convicted of serious property fraud offences and had sought a stay of removal, are equally applicable:

[47] However, if I had determined that Mr. Tesoro’s removal would cause irreparable harm, on the ground that the effects of family separation were more than mere inconveniences, I would have located the harm at the less serious end of the range, and concluded that, on the balance of convenience, it was outweighed by the public interest in the prompt removal from Canada of those found to be inadmissible for serious criminality. If the administration of immigration law is to be credible, the prompt removal of those ordered deported must be the rule, and the grant of a stay pending the disposition of legal proceedings, the exception. (Emphasis added).

• *One message from this case and subsequent jurisprudence is that sometimes deportation renders an appeal nugatory (e.g. a JR of a negative PRRA decision) and sometimes it does not (may be able to pursue the appeal from abroad without the grounds in the underlying application being undermined). Moreover, sometimes the rendering of an appeal nugatory results in irreparable harm, and sometimes it does not (see El Ouardi).