Date: 20060707
Docket: IMM-2014-06
Citation: 2006 FC 860
Ottawa, Ontario, July 7th, 2006
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
OMAR AL ASALI, MANAL DAFASH, NAMZEH AL ASALI,
HEBA AL ASALI, OBADA AL ASALI AND TUQA AL ASALI
Applicants
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicants request an order prohibiting the Minister from removing them from Canada to the United States on July 7, 2006. The underlying application on this motion is a negative Pre-Removal Risk Assessment (PRAA) that was completed February 28, 2006 and communicated to the applicants on May 4, 2006.
[2] The applicants are stateless Palestinians from the West Bank. They came to Canada on November 29, 2004, and claimed refugee protection in Canada. On July 25, 2005 the Refugee Protection Division (RPD) of the Immigration and Refugee Board determined that the applicants are not convention refugees or persons in need of protection. The RPD rejected the credibility of the material facts asserted in support of the refugee claim.
[3] On May 4, 2006, an enforcement officer employed by the Canada Border Services Agency (CBSA) informed the applicants that their application for pre-removal risk assessment was denied, and provided them with a direction to report for removal on July 7, 2006. The Officer had agreed to defer the removal until that date to allow the minor applicants to complete their school year in Canada.
[4] In normal circumstances, I would be loath to entertain this motion, considering its lateness. The applicants did not seek to file a stay motion challenging their removal until June 30, 2006, almost two months after being appraised of the removal order. Indeed, the applicants have failed to act with diligence in pursuing a further deferral of their removal and only applied for such a deferral on June 24, 2006; that deferral request was denied on June 26, 2006. The only reason provided by the applicants for acting in such a cavalier way was that they were expecting the enforcement officer to grant a further deferral given the current situation in Gaza and the West Bank with the incursion of Israeli forces.
[5] This kind of behaviour must be discouraged, as it abuses the judicial process and prejudices the respondent. The granting of a stay is an exceptional remedy, and it can be denied to those who prefer to wait to the last minute to present their case on short notice, in the absence of an adequate explanation for their delay. It is therefore with reluctance that I have nevertheless accepted to hear the parties, in consideration of the very special circumstances of this case.
[6] The tripartite test to be applied on an application for a stay of removal is well-known and has been set out in Toth v. Canada(Minister of Employment and Immigration), (1988), 86 N.R. 302 (F.C.A.).
[7] I have carefully considered the materials submitted and heard counsel for the parties by way of teleconference. The applicants have submitted three serious issues with respect to the negative PRRA decision. First of all, they have argued that the Officer failed to explain why the risk of harassment and of discrimination to which the applicants would be subjected was not enough to establish a risk of persecution, death, or cruel and unusual treatment. Secondly, they have contended that the assessment of the evidence with respect to country conditions was highly selective and in blatant disregard of substantial evidence before the officer. Finally, they submitted that the officer treated the applicants as a unit and did not pay attention to the particularly dire situation of children similarly situated in the Occupied Territories.
[8] The threshold for accepting that a serious issue exists is a low one. Without pronouncing on the merits of the applicants' allegations, I am prepared to accept that the applicants have raised serious questions in the sense that they are not futile but on the contrary can be the subject of a judicial debate.
[9] There was much debate before me as to whether the irreparable harm should be assessed in light of the fact that the applicants are to be removed to the United States, as opposed to the West Bank. While being of the view that the applicants would not suffer irreparable harm if removed to the United States, it is fair to assume that they will most likely be sent back to their country of origin since they have no status in the United States. It is therefore as against the situation they would be facing in the West Bank that irreparable harm must be evaluated.
[10] In the best of time, as the PRRA Officer noted, "country conditions are poor for Palestinians from the West Bank. The human rights record of the Palestinian Authority is poor and police lack the necessary resources to be effective". If this was the situation on February 28, 2006, it is not much of a stretch to assume that things can only have deteriorated since then. The turmoil created by the recent election of the Hamas government, the rift between the various political factions resulting from that election, and now the military operations of the Israeli army have all contributed to an escalation of violence to which children are particularly vulnerable. In those very special circumstances, I am convinced that the harm contemplated is more than unpleasant or distasteful and go beyond the normal consequences of deportation.
[11] Of course, I accept that the Minister has an interest in upholding the Immigration and Refugee Protection Act by executing deportation orders as soon as is reasonably practicable. But in this particular case, and at this very moment in time, I also find that the potential harm to the applicants and especially to the children far outweighs the public interest in having the Act applied.
ORDER
THIS COURT ORDERS that the application for a stay of the removal of the applicants is granted, pending the final disposition of the application for judicial review of the Pre-removal Risk Assessment.
"Yves de Montigny"
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