Park v. Canada (Minister of Citizenship and Immigration), 2001 FCT 46

     Date: 20010209

     Docket: IMM-514-01

Ottawa, Ontario, this 9^th day of February 2001

PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER

BETWEEN :

     OK JU (YOON) PARK and YOON KYUNG PARK,

JAE SANG PARK by their litigation guardian OK JU (YOON) PARK

     Applicants

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

PELLETIER J.

[1]      At the conclusion of the hearing of this matter, I rendered judgment orally by teleconference on February 7, 2001. This is a transcription of my reasons, edited for readability.

[2]      This is an application for a stay following the refusal of a removals officer to defer removal. The facts are peculiar.

[3]      Mrs. Park has been involved in an abusive relationship for a number of years. She came to Canada with her husband, she says, because she believed that her situation would be better here because there are stronger protections for women. She did not raise abuse as a ground in her refugee application because she and her husband were still together. That claim was dismissed. No application for judicial review was taken. No humanitarian and compassionate ("H & C") application was made nor was a post-determination refugee claimants in Canada class ("PDRCC") application made. The family, while not going underground, avoided removal. Three months ago, they separated as a result of Mr. Park's violence. He continued to contact her and threaten her. Last weekend, he forced his way into their home brandishing a butcher knife which he used to threaten the applicant and children. She managed to appease him by agreeing to take him in. The next day, she went to the police to seek protection as a result of which she was arrested in an outstanding immigration warrant. The evidence is that he will be able to find her in Korea and that she fears for her safety and that of her children. I am satisfied as to the bona fides of her fear because it drove her into the arms of the police.

[4]      The Notice of Application seeks a declaration that the removal of the applicants from Canada without a valid risk assessment violates their section 7 right to security of the person. The applicants rely upon a decision of the Federal Court of Appeal in Farhadi v. Canada, [2000] F.C.J. 646, (2000), 257 N.R. 158, for proposition that "a risk assessment and determination conducted in accordance with the principles of fundamental justice is a condition precedent to a valid determination to remove an individual from the country".

[5]      Farhadi, supra, is a refugee case and I am reluctant to suggest that the principle expressed therein applies to all cases of removal. However, I am satisfied that this case raises an issue as to the mechanism by which the immigration system responds to a change in circumstances which poses an imminent threat to the applicants' personal safety.

[6]      The issue of the effect of a delay in accessing available remedies is one which will be determined in the judicial review application and not here.

[7]      I am also reluctant to conclude that the obligation to assess and weigh whether such a change in circumstances has occurred rests with the removals officer but this also is an issue which arises on these facts.

[8]      I find as a result that there is a serious issue to be tried and irreparable harm. The balance of convenience follows.

[9]      There will be an order staying execution of the deportation order against the applicants until their judicial review application has been dealt with or their H & C application has been processed, whichever occurs first.

     "J.D. Denis Pelletier"

     Judge