Date: 20031128
Docket: IMM-8537-03
Citation: 2003 FC 1394
Toronto, Ontario, November 28th, 2003
Present: The Honourable Mr. Justice Blanchard
BETWEEN:
HASSAN ALMREI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
AMENDED REASONS FOR ORDER AND ORDER
(Delivered from the bench on November 27th, 2003 in
Toronto, Ontario)
[1] The applicant seeks an order granting a stay of the removal order in force against him which provides for his removal to Syria, his country of nationality, within the next two and a half weeks. The applicant also seeks an order sealing parts of the motion record.
Background
[2] The applicant, Mr. Almrei, came to Canada in January 1999 and claimed protection as a Convention refugee. He was found to be a Convention refugee by the Convention Refugee Determination Division of the Immigration and Refugee Board on June 2, 2000.
[3] On October 16, 2001, the Minister of Citizenship and Immigration and the Solicitor General signed a security certificate pursuant to section 40.1 of the Immigration Act, R.S.C. 1985, c. I-2, stating that they were of the opinion that the applicant was inadmissible to Canada. The applicant was detained pursuant to that certificate.
[4] On November 19, 2001, Mme. Justice Tremblay Lamer determined that the security certificate issued against the applicant was reasonable.
[5] At the end of 2001, the applicant received notice that the Minister would be seeking an opinion that the applicant was a danger to the security of Canada and should be removed from Canada. On February 11, 2002, following an inquiry, the applicant was found to be inadmissible pursuant to subsections 19(1)(e)(iii), 19(1)(e)(iv)(c), 19(1)(f)(ii), and 19(1)(f)(iii)(b) of the Immigration Act. He was ordered deported on that date.
[6] The applicant was notified on January 15, 2003 that a delegate of the Minister had made a decision to refoule the applicant to Syria. The applicant sought leave to review this decision. The Minister consented to leave being granted and then consented to the application for judicial review being allowed. The applicant's case was therefore referred back to the Minister for reconsideration.
[7] The applicant received notice on July 28, 2003 that the Minister of Citizenship and Immigration would make a determination pursuant to section 115(2)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c.27 as to whether he should be removed from Canada on the basis that he poses a danger to the security of Canada. On October 23, 2003, the Minister's delegate, the Director General of the Case Management Branch, Citizenship & Immigration, made a determination that the applicant would not be at risk of torture if returned to Syria and, in the alternative, if he would be at risk of torture if returned to Syria, his removal to torture was justified because of the risk he presented to the security of Canada.
[8] The applicant has filed an application for leave and for judicial review of the decision of the Minister's delegate that he may be removed from Canada to Syria, his country of nationality.
[9] On Friday, November 21, 2003, affidavit evidence was filed indicating that the removal date had been selected and removal was scheduled to occur within two and one-half weeks. The specific date scheduled for removal was not disclosed for security reasons.
[10] A detention review proceeding, initiated by the applicant pursuant to section 84(2) of the Immigration and Refugee Protection Act, is ongoing.
Analysis
[11] The proper test to apply in an application for a stay is the tripartite test set out in Toth v. M.E.I. (1988), 86 N.R. 302 (F.C.A.). This test requires that the applicant demonstrate that (1) he has raised a serious issue to be tried in the underlying judicial review application; (2) he would suffer irreparable harm if no order was granted; and (3) the balance of convenience considering the total situation of both parties, favours the granting of the stay.
Serious Issue
[12] The applicant submits that there are a number of serious issues in the underlying judicial review application that justify a stay of the removal order. Among these, the applicant submits that the reasons provided by the Minister's Delegate make no specific mention of evidence that was filed by the applicant indicating that the applicant would be at risk of torture if returned to Syria. He argues that the decision was consequently made without regard to the evidence.
[13] Reports by three professors (Kingston and two others, whose names are not public) were submitted by the applicant to the Minister on November 12, 2002, August 18, 2003, and September 24, 2003. As such, the reports were properly before Minister's Delegate.
[14] The Minister's Delegate stated on page three of her reasons:
The evidence before me, primarily the reports from organizations such as Amnesty International, on the general conditions in Syria shows that the human rights record of Syria is poor and that detention and torture are not uncommon. I see no reason not to accept this evidence. However, the evidence before me on the personal risk faced by Mr. Almrei is less conclusive.
[15] The reasons of the Minister's delegate do not specifically mention the reports of the professors, or their contents, or deal with their respective conclusion on the risk of torture to the applicant should he be returned to Syria. In her reasons, the Minister's delegate concludes that "... the evidence before [her] on the personal risk faced by Mr. Almrei is less conclusive" and later writes that "...the totality of the evidence before [her], however, is inconclusive as to Syria's treatment of persons suspected of involvement in terrorism."
[16] The respondent submits that the reports at issue did not need to be specifically addressed by the Minister's delegate in her decision because the evidence provided in the reports goes to generic country conditions and does not refer to specific risk faced by the applicant.
[17] In Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35, the Court, at paragraphs 14 to 17, considered when a decision will be said to be "without regard to the evidence":
The Court may infer that the administrative agency under review made the erroneous finding of fact "without regard to the evidence" from the agency's failure to mention in its reasons some evidence before it that was relevant to the finding, and pointed to a different conclusion from that reached by the agency....
[18] The reports submitted by the applicant gave evidence of the risk to which he would be subjected if returned to Syria. Each of the reports concludes that the applicant will be at risk. Specifically, the reports contain the following statements:
...
Mr. Almrei faces certain detention in Syria, certain torture and likely execution, if he is returned there. I cannot emphasize how strongly I believe that this is his fate in Syria.
...
I strongly urge Canadian Immigration authorities to stop all efforts to deport him to Syria, a decision that will in my judgement subject him to a high risk of torture and death.
...
I conclude that, on the basis of his Islamist profile and the entrenched practices of Syria's multiple security services, Mr. Almrei would face a significant risk of torture if he were returned to Syria.
...
[19] The applicant argues that given the importance of this evidence to the issue of risk to the applicant, and particularly since the conclusions reached in the reports are contrary to that of the Minister's delegate, the evidence should have been explicitly dealt with in her reasons.
[20] The Court in Cepeda-Gutierrez, supra, stated at paragraph 17 that the more important the evidence that is not mentioned specifically and analysed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact without regard to the evidence.
[21] The decision on the merits ought best be left to a judge hearing the judicial review application. He or she will have the benefit of a more fulsome record and arguments. Indeed, the Supreme Court of Canada confirmed in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 that the judge on an application for a stay must make only a preliminary assessment of the merits of the case (paragraph 50):
Once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests, even if of the opinion that the plaintiff is unlikely to succeed at trial. A prolonged examination of the merits is generally neither necessary nor desirable.
[22] Given the low threshold for a serious issue, I am satisfied that the applicant has established a serious issue for the purpose of this stay application.
Irreparable Harm
[23] The Syrian authorities have noted on the first travel documents issued for the purpose of the applicant's removal that he is suspected to be a terrorist. The undisputed evidence on general conditions in Syria shows that the human rights record of Syria is poor and that detention and torture are not uncommon. It is difficult to speculate on the fate that may await a person who is to be deported to a country where the human rights record falls below international or Canadian standards. I am however satisfied, on the evidence, that the applicant will likely be detained by Syrian authorities upon his arrival in Syria.
[24] I am in agreement with the view expressed by Mr. Justice Robertson in Suresh v. M.C.I., [1999] 4 F.C. 206 (F.C.A.) at paragraph 13, where the learned Justice stated that the issue of irreparable harm can be answered in one of two ways. The first involves an assessment of the risk of personal harm if a person is deported to a particular country, which is one of the key questions at issue in the underlying application to this stay application. The second involves assessing the effect of a denial of a stay application on a person's right to have the merits of his or her case determined and to reap the benefits associated with a positive ruling.
[25] At paragraph 14 of his reasons for decision, the learned Justice stated that, should the applicant be deported prior to the hearing of this appeal, the pending appeal will be rendered "moot" or "nugatory". He explained:
Assuming that Mr. Suresh is deported and detained in Sri Lanka prior to that proceeding, and assuming that he is successful on appeal, Mr. Suresh's successful constitutional challenge would be unlikely to release him and, therefore, he would be unable to avail himself of the fruits of his victory, most likely, the right to remain in Canada until such time as his case is disposed of in accordance with the Charter. Were he to remain in Canada and be successful on his appeal, I take it for granted that the Minister would be unable to act on the deportation order.
[26] I am of the view that the above reasoning of Mr. Justice Robertson in Suresh, supra, is applicable to the case at bar. On the evidence, it is unlikely that Syrian authorities will release the applicant should he be successful on his underlying application, and he would therefore be unable to avail himself of the "fruits of his victory". Consequently, I find it unnecessary to fully consider and decide the risk to the applicant if he is returned to Syria and whether that risk constitutes irreparable harm. For the purposes of this stay application, I find that the applicant will suffer irreparable harm if his stay is not granted, on the basis that removal will render his pending application "moot" or "nugatory".
Balance of Convenience
[27] In view of my above findings with respect to serious issue and irreparable harm, I am satisfied that the third branch of the Toth test should be determined in favour of the applicant. I accept that the applicant will suffer greater harm if a stay of the removal order is not granted than the inconvenience to the Minister should the stay be granted. Consequently, the balance of inconvenience favours the applicant.
Conclusion
[28] For the above reasons, the motion will be granted and the removal order will be stayed pending final disposition of the underlying application for leave and for judicial review.
ORDER
THIS COURT ORDERS that
1. The motion is granted.
2. The removal order is stayed pending final disposition of the underlying application for leave and for judicial review.
"Edmond P. Blanchard"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-8537-03
STYLE OF CAUSE: HASSAN ALMREI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATES OF HEARING: NOVEMBER 26-27, 2003
AMENDED REASONS FOR
ORDER AND ORDER BY: BLANCHARD, J.
DATED: NOVEMBER 28, 2003
Delivered from the bench at Toronto, Ontario on November 27, 2003
APPEARANCES BY:
Ms. Barbara Jackman FOR THE APPLICANT
Mr. Donald MacIntosh FOR THE RESPONDENT (MCI)
Ms. Alexis Singer FOR THE RESPONDENT (MCI)
SOLICITORS OF RECORD:
Ms. Barbara Jackman FOR THE APPLICANT
Toronto, Ontario
Morris Rosenberg FOR THE RESPONDENT (MCI)
Deputy Attorney General of Canada
Toronto, Ontario
FEDERAL COURT
Date: 20031128
Docket: IMM-8537-03
BETWEEN:
HASSAN ALMREI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
AMENDED REASONS FOR
ORDER AND ORDER
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