Date: 20061018
Docket: IMM-5310-06
Citation: 2006
FC 1250
Toronto, Ontario, October 18, 2006
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
LEILA BREHELIA TRIMMINGHAM
BROWN
OMAR TRIMMINGHAM
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
applicants, mother and child, have been directed to report for removal to their
native St.
Vincent and the Grenadines.
Their pre-removal risk assessment (PRRA) determined that they would not be
subject to risk of persecution, danger of torture, risk to life or risk of
cruel and unusual treatment or punishment if returned there. They have filed an
application for leave and for judicial review of that decision and in the
interim have moved the Court for an order staying their removal.
[2]
Ms. Brown
was in a very abusive relationship with her son’s father. So much so that she
and her son, Omar, fled to Canada. Her common-law spouse
followed her and they reconciled for a while. However, he again became abusive.
She obtained a restraining order. He was charged, convicted, jailed and later deported
to St. Vincent. The PRRA officer found Ms.
Brown to be credible. There is no question that she is at risk if returned to
St. Vincent. The question on judicial review, should it come to that, is
whether there is state protection (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689). However, and
despite the eloquent and tenacious submissions by counsel for both parties,
that is not the issue before me. The question before me right now is whether
the status quo should be preserved pending the outcome of that
application for leave and for judicial review.
[3]
This Court
has recently dealt with a number of domestic abuse cases from St. Vincent. I was practically invited to
take judicial notice that while the authorities in St. Vincent may be willing,
they are incapable of protecting victims of domestic abuse. This Court cannot
take judicial notice of the factual situation in St. Vincent. Decisions such as Myle v. Canada
(Minister of Citizenship and Immigration), 2006 FC 871, and Henry v. Canada (The Minister of Citizenship
and Immigration),
2006 FC 1060 do not stand for that proposition. Country conditions, often
compiled from various sources, are, at least to some extent, matters of opinion
in terms of the material included, and in the manner in which they are
presented. Other material may have been omitted or downplayed. The decision of
the Refugee Protection Division of the Immigration and Refugee Board, although
presented as a finding of fact, is also largely a matter of opinion. The Court must
take into account the deference owed the IRB and determine whether that
decision is outside the boundaries set by the pragmatic and functional approach
to judicial review. Myle and Henry are not binding as to what the
situation is in St.
Vincent. They
are based on the material in a particular file, including the claimant’s own
history. As Mr.
Justice Shore
noted in Myle, each case turns on its own facts. The Minister argues
this point strenuously since the record in this case as to country conditions
is more recent than in Myle and Henry, and he submits that the
situation has greatly improved.
[4]
However, this
is an application for a stay, meaning that as per RJR
- MacDonald v. Canada (Attorney General), [1994] 1 S.C.R. 311
and Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.), there are three issues which the
claimant must overcome. The first is whether there is a serious underlying case
on the merits, the second is irreparable harm, and the third is the balance of
convenience.
[5]
As to the first issue, the general rule as per RJR
– MacDonald, above, is that there is a serious underlying case if it is
neither frivolous nor vexatious. This test is lower than that on whether leave
should be granted, which is based on a fairly arguable case (Bains v. Canada (Minister of Citizenship and
Immigration) (1990), 47 Admin. L.R. 317, 109 N.R.
239 (F.C.A.)), or whether judicial review should be granted which is based on the
balance of probabilities that the decision-maker did not meet the appropriate
standard of review.
[6]
In this case, I am satisfied that the applicants
have met the serious issue test. They have certainly raised the possibility
that St. Vincent may not be capable of protecting them and that the decision-maker
was over-selective in making a “good news” decision.
[7]
As to irreparable harm, pending disposal of the
underlying applications, this is what Ms. Brown, who has been found credible,
has said: “The last time I saw Oriel was June 10, 2004, he spent a total of
four months in jail and in the detention centre and was deported back to St.
Vincent. Although St. Vincent is in the Caribbean, he still found a way to send threatening words to me like
‘U bitch, you sent
me to jail and you will pay.’ He said, ‘don’t forget you have a son down here, and when you get
sent back, you are going to finished.’ He says ‘if you ever come back to St.
Vincent ever, even if you wanted to visit, because I will be waiting.’” In RJR
– MacDonald, above, the irreparable harm was the cost to tobacco companies
of conforming with legislation that they were challenging on constitutional
grounds. In Toth, above, the serious issue was also economic, the
potential failure of a family business. That simply does not compare with Ms.
Brown’s situation.
[8]
As noted
in RJR – MacDonald, above, the test of balance of convenience was
described by Mr. Justice Beetz in Manitoba (Attorney General) v. Metropolitan
Stores (MTS) Ltd., [1987] 1 S.C.R. 110 at paragraph 35 as “a
determination of which of the two parties will suffer the greater harm from the
granting or refusal of an interlocutory injunction, pending a decision on the
merits.” If a stay is granted, and the underlying application is dismissed, the
inconvenience to the Minister is a slight delay in enforcing the removal. If a
stay is not granted, and the underlying application is successful and a new
hearing ordered, it may be moot as in the meantime Ms. Brown may have been
murdered in St.
Vincent.
[9]
For these
reasons, a stay will be granted. RJR – MacDonald, above, makes the point
that these decisions must be made quickly and on the basis of a very limited
review of a limited record. A stay should not imply that leave for judicial
review will be granted, or if so, that judicial review will also be granted.
ORDER
THIS COURT ORDERS that the removal
of the applicants is stayed until the final disposition of the application for
leave and for judicial review herein.
“Sean Harrington”
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