Date: 20040205
Docket: IMM-795-04
Citation: 2004 FC 196
Ottawa, Ontario, this 5th day of February, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
COURTNEY DENNIS
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Courtney Dennis has brought a motion for an order staying his removal from Canada, until such time as his pending application for leave and judicial review has been finally disposed of by this Court.
[2] Mr. Dennis, a citizen of Jamaica, has lived in Canada for approximately 28 years. He became a permanent resident of Canada in 1976 when he was eight years old. He is married to a Canadian citizen and has two Canadian children, ages 15 and 8. He has been raised and socialised as a Canadian.
[3] Mr. Dennis has a criminal record of offences in Canada, the most serious being an attempted robbery conviction in 1996, which, on his own concession, involved a firearm. He was sentenced to 30 months in prison for this offence, and served 5 months of his sentence, prior to being released on parole. The other offences on his record, while serious, consist for the most part of property offences committed as a young man.
[4] He was deported to Jamaica in January 1999, after being certified as a "danger to the public" of Canada, due to his criminal record. He claims to have faced serious threats to his personal safety while in Jamaica and to have been beaten up and targeted for extortion as a deportee from Canada. In June 1999, he returned to Canada without the consent of the Minister, which was in contravention of the Immigration Act, R.S.C. 1985, c. I-2. This was discovered and he was arrested, charged and ultimately convicted for this offence, receiving a $600 fine. While the charge was pending he was released on a cash bond by an immigration adjudicator.
[5] At his immigration inquiry in June 2000, Mr. Dennis indicated his desire to make a claim for refugee protection in Canada. He was issued a conditional removal order at that time. Subsequently, he was found eligible to have his claim heard by the Immigration and Refugee Board. However, his hearing was not scheduled to take place until July 16, 2002, after the coming into force of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"). Pursuant to subsection 103(1)(a) of IRPA, the Refugee Protection Division notified Mr. Dennis on July 15, 2002, that it had suspended consideration of his claim sine die. By notice dated August 20, 2002, his refugee claim was terminated pursuant to subsection 104(1)(b) of IRPA on the grounds that he was ineligible to make a claim due to "serious criminality".
[6] In June 2002 the applicant was charged with theft under $5000. He failed to appear at one of the subsequent court dates in relation to this charge and a warrant was issued for his arrest. In one of his affidavits filed in this proceeding, Mr. Dennis sets out the circumstances of this charge, maintains his innocence and that his failure to appear in court was the result of an inadvertent communication error with his counsel. The theft charge was ultimately stayed by the prosecutor, apparently "to facilitate deportation". Mr. Dennis is, of course, entitled to the presumption of innocence with respect to this charge and I have accorded it little or no weight in these proceedings.
[7] Mr. Dennis filed a Pre-Removal Risk Assessment ("PRRA") application in May 2003. By letter dated July 15, 2003, the PRRA officer provided her opinion and invited the applicant to provide any further submissions in response within 15 days of receipt of that letter. On August 1, 2003, counsel for Mr. Dennis faxed the PRRA officer, stated that she intended to respond to the risk opinion and that the response would be submitted on August 5, 2003.
[8] From the record disclosed to this Court, including a fax confirmation from Mr. Dennis' counsel's office, it appears that these submissions were indeed faxed to the PRRA officer on August 5, 2003, however, the PRRA officer did not receive them. In her final risk opinion, the officer states that such submissions were not received. That final risk opinion is dated November 12, 2003, and was served on the applicant on January 15, 2004. The applicant has sought leave for judicial review of that decision.
[9] In order for an applicant to be successful on a stay motion, he must establish the tripartite test, set out in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.), namely that there is a serious issue to be tried, that he would suffer irreparable harm and that the balance of convenience lies in his favour.
[10] Having reviewed all the material submitted, I am satisfied that the applicant has raised a serious issue to be tried, namely his allegation of procedural unfairness in that the Minister's department, Citizenship and Immigration Canada ("CIC"), appears to have misplaced his August 5, 2003 submissions. These submissions, while not extensive, do point out claimed problems and deficiencies with the PRRA officer's risk opinion that should have been taken into consideration before the final decision was issued.
[11] There is a serious issue as to who should bear the burden of the misplacement of the applicant's submissions critiquing the risk opinion. The respondent has cited the case of Arshad v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1431 (T.D.) (QL), for the proposition that the PRAA officer was under no obligation to pursue the applicant for his comments on her opinion. Arshad is distinguishable on its facts, in my view, and not readily applicable, as the applicant in that case had failed to satisfy a deadline for the submission of his comments and the comments were received by CIC at the date of decision, without the awareness of the PRRA officer. That is not the situation in this case.
[12] Next, moving to irreparable harm, I am persuaded that the applicant has demonstrated that he will face irreparable harm if removed to Jamaica before his judicial review application is determined. He claims a serious risk to his life and personal safety if returned to Jamaica, and further that he and his children will suffer harm due to his removal. He attests that he is completely vulnerable to personalized risk in Jamaica, having lived 28 of his 35 years in Canada, and that he has no ties or any relatives in Jamaica, his surviving parent and siblings having long been established in Canada. He also attests that the emotional well-being of his family, particularly of his two children aged 15 and 8, would be irreparably harmed if he were deported, that he and his wife have bought a home and that if he were removed from Canada, his family would lose the house as his wife could not afford to pay the mortgage payments on her own.
[13] The respondent argues that Mr. Dennis' recent statement indicating that he was willing to voluntarily remove himself to another country, other than Jamaica, undermines his claim that he will suffer irreparable harm if removed. I chose to interpret that statement rather as one offered in desperation at the prospect of removal to Jamaica and reinforcing his fear of harm in that country.
[14] Considerable evidence was advanced on behalf of the applicant that he has rehabilitated himself, was steadily employed with his brother's business and was a major and positive influence on his children's development.
[15] Recently this court in Martinez v. Canada (Minister of Citizenship and Immigration), 2003 FC 1341, recognized that the best interests of children affected by a removal decision must be considered in light of the United Nations Convention on the Rights of the Child's protection of the right of a child to know and be cared for by their parents. The fact that IRPA must be construed and applied in a manner that is consistent with international human rights instruments to which Canada is signatory is explicitly set out in subsection 3(3)(f) of IRPA. While by no means a determinative factor of irreparable harm, in my view, the best interests of the children affected by this removal, in addition to the other factors of this case, satisfy me that irreparable harm will befall this applicant and his children if he is removed from Canada.
[16] My colleague, Justice von Finckenstein has recently held in Rimoldi v. Canada (Minister of Citizenship and Immigration), 2003 FC 1481, that the principle in Martinez applies to the PRRA officer's risk assessment, a position which the respondent rejects, focussing on the mandate given the PRRA officer to consider the risk to the applicant of persecution or torture if returned to his country of origin. In my view, the determination of the proper scope of consideration of the PRRA decision is best left to another day, perhaps to the reviewing judge should leave be granted in this matter.
[17] Finally, notwithstanding Mr. Dennis' criminal record, I find the balance of convenience in his favour. He attests, supported by his family, that he has learned from his past crimes and punishment incurred, and that he has turned a new leaf. I acknowledge the importance of the public safety considerations that militate in favour of the removal of serious criminals to their
countries of origin. In the particular circumstances of this case, I do not believe that objective will be imperilled by permitting Mr. Dennis to remain in the country until his judicial review application is finally determined.
ORDER
THIS COURT ORDERS that the applicant's request for a stay of removal, pending the final determination of his application for leave and for judicial review is granted.
"Richard G. Mosley"
F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-795-04
STYLE OF CAUSE: COURTNEY DENNIS
AND
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Ottawa / Calgary / Toronto
via Teleconference
DATE OF HEARING: February 4, 2004
REASONS FOR ORDER
AND ORDER BY: The Honourable Mr. Justice Mosley
DATED: February 5, 2004
APPEARANCES:
Roxanne Haniff-Darwent FOR THE APPLICANT
Carrie Sharpe FOR THE RESPONDENT
SOLICITORS OF RECORD:
ROXANNE HANIFF-DARWENT FOR THE APPLICANT
Calgary, Alberta
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario
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