Date: 20040116
Dockets: IMM-9996-03
IMM-9995-03
IMM-10174-03
Citation: 2004 FC 53
BETWEEN:
JOHANNES MEHARI MIRCHA
Applicant
- and -
THE SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR ORDER
PINARD J.:
[1] At the hearing before me, it was agreed by counsel for the parties that the motion for an interlocutory injunction staying the removal of the applicant to Ethiopia in Docket IMM-9996-03 also applies to Dockets IMM-9995-03 and IMM-10174-03, which were accordingly considered together with Docket IMM-9996-03.
[2] The underlying proceeding in IMM-10174-03, is an application for leave and for judicial review of the enforcement officer's failure to consider whether the danger opinion issued against the applicant in 1996 is valid prior to removal.
[3] The underlying proceeding in IMM-9995-03, is an application for leave and for judicial review of the decision of Cindy Comrie refusing to reconsider the above danger opinion.
[4] The underlying proceeding in IMM-9996-03, is an application for leave and for judicial review of the Pre-Removal Risk Assessment (PRRA) officer's decision that the applicant would not be at risk if he is returned to Ethiopia.
1. Serious issue
[5] With respect to Docket IMM-10174-03, the applicant has failed to establish the existence of a serious issue, as subsection 326(3) of the Immigration and Refugee Protection Regulations, SOR/2002-227, (the "Regulations") clearly discloses that a danger opinion issued under the former Immigration Act, R.S.C. 1985, c. I-2, continues to be valid for the purposes of subsection 115(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "IRPA"). Furthermore, section 48 of the IRPA provides that a removal order is to be enforced as soon as reasonably practicable. An enforcement officer is therefore under an obligation to remove and has no authority to question the validity of a danger opinion.
[6] In Docket IMM-9996-03, the applicant has also failed to raise a reasonably arguable case, and that, for the following reasons:
(a) The applicant has failed to establish that the PRRA officer based her decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before her. A review of the evidence and of the PRRA officer's reasons disclose that her conclusions were reasonably open to her and that she conducted a serious review of the applicant's submissions in determining that he was not at risk within the meaning of section 97 of the IRPA. It is not the role of this Court to reconsider and re-weigh the evidence that was before the PRRA officer whose reasons cannot be characterized as irrational.
(b) By virtue of subparagraph 113(d)(i) of the IRPA read together with paragraph 172(4)(a) of the Regulations, if the applicant is not found to be at risk pursuant to section 97 of the Act then no further assessment is required.
[7] In Docket IMM-9995-03, however, I am satisfied that the failure to provide the applicant with a reasonable opportunity to make submissions before denying his request to reconsider the 1996 danger opinion raises a serious procedural fairness issue. Given the circumstances, it may be reasonably argued that in spite of a short delay of less than two weeks after the expiration of a self-imposed time-frame by the applicant, fairness required that prior to the impugned decision dated December 15, 2003, the decision-maker at least acknowledge receipt of the applicant's counsel's written request, on October 27, 2003 for an opportunity to have the danger opinion reconsidered.
2. Irreparable harm
[8] Learned counsel for the respondent conceded that the applicant's two children will suffer irreparable harm if the applicant is removed to Ehiopia.
3. Balance of convenience
[9] The parties agreed that as a consequence of a finding of the existence of a serious issue and of irreparable harm, in this matter, the balance of convenience would be in favour of the applicant.
[10] Accordingly, an interlocutory injunction staying the removal of the applicant to Ethiopia is denied in Dockets IMM-9996-03 and IMM-10174-03, and is granted only in Docket IMM-9995-03.
[11] Consequently, the removal of the applicant to Ethiopia is stayed pending disposition of the application for leave, and if leave is granted, of the application for judicial review in Docket IMM-9995-03.
JUDGE
VANCOUVER, BRITISH COLUMBIA
January 16, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKETS: IMM-9996-03
IMM-9995-03
IMM-10174-03
STYLE OF CAUSE: JOHANNES MEHARI MIRCHA v. THE SOLICITOR GENERAL OF CANADA
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: January 12, 2004
REASONS FOR ORDER: The Honourable Mr. Justice Pinard
DATED: January 16, 2004
APPEARANCES:
Ms. Fiona Begg FOR THE APPLICANT
Ms. Brenda Carbonell FOR THE RESPONDENT
SOLICITORS OF RECORD:
Bediako K. Buahene FOR THE APPLICANT
Barrister & Solicitor
Vancouver, British Columbia
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
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