Date: 20090507
Docket: IMM-2118-09
Citation: 2009 FC 473
Ottawa, Ontario, May 7, 2009
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
GULSUM
KOCA
Applicant
and
THE MINSITER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
This
is a motion brought with respect to the application for leave and for judicial
review of the negative Pre-Removal Risk Assessment (PRRA) decision which was rendered
against the Applicant, on March 17, 2009. The Applicant, Ms. Gulsum Koca, a
citizen of Turkey, seeks an order staying her removal from Canada until such time as the
underlying application for leave and for judicial review is finally determined.
[2]
Under
the heading of serious issue, the PRRA Officer failed to consider the Ms. Koca’s
conversion to an evangelical form of Christianity when assessing the risks on
return.
II. Background
[3]
Ms.
Koca, was born on December 3, 1970, in Turkey. She came to Canada in 2002 and made a refugee claim based on
being an Alevi Muslim. The Refugee Protection Division of the Immigration and
Refugee Board (Board) refused her claim, in 2004.
[4]
Ms.
Koca met
Mr. Andrew Koshelanyic, in 2002, and married him, in 2004. Her husband was
extremely abusive from early on in their relationship. Details of the abuse
that she endured were included in her Humanitarian and Compassionate (H&C) application.
Ms. Koca also describes the abuse she endured in her narrative submitted to the
Criminal Injuries Compensation Board, which was submitted in support of her
H&C application. At one point, she attempted suicide. She describes one of
the many incidents of abuse as follows:
…One day, he
decided to go out to get cigarettes. I told him I wanted to go with him to get
some fresh air and exercise. He refused and got very angry. He tried to pick a
fight. I told him I only wanted to talk. Then he put me in a headlock and
started punching me in the head. Still holding me in a headlock, he dragged me
around the apartment until I fell down. Then he began to kick me. I tried to
walk towards the door, but it was a very narrow hallway and he caught me again
and began to kick me again in the back and lower hips. I curled up on the
ground and tried to protect my head. By that time, my head was hurting very
badly. While I was on the floor, he lost it completely. He started punching and
kicking me continuously. He was swearing at me. I couldn’t understand
everything he said because I was in a state of shock…
Finally,
he stopped and asked himself repeatedly: What have I done? I stood up and asked
“How could you do this to me?” Then I noticed that my nose was bleeding. He was
frightened and brought a cloth to wipe my nose. Noticing his show of affection,
I asked him to apologize. He did so, and promised that it would never happen
again. This happened during the first week of January 2003…
(Motion Record (MR), Applicant’s narrative
at pp. 118-121).
[5]
The
abuse did not end and Ms. Koca’s husband sponsored her. A few months after Ms. Koca
married her husband, in 2004, she left him. Included in Ms. Koca’s H&C application
is a letter of support from Blanca Alvarado of the Barbra Schlifer
Commemorative Clinic, which provides assistance to women who are survivors of
domestic abuse. This letter also describes the abuse that Ms. Koca experienced
in her relationship with her husband. The behaviour points to the battered wife
syndrome (MR, Applicant’s narrative at p. 120; Letter from Barbra Schlifer
Commemorative Clinic at pp. 32-34).
[6]
In
October 2004, Ms. Koca applied for Permanent Residence on Humanitarian and
Compassionate grounds. In 2006, Ms. Koca applied for a PRRA (MR: Affidavit of
Gulsum Koca at pp. 4-5).
[7]
In
2006, Ms. Koca re-married her ex-husband. During that time, he applied to
sponsor her in Canada; however, due to his
abuse, she left him again and he withdrew the sponsorship application.
[8]
As a
result of her ex-husband’s abuse, Ms. Koca developed serious physical and
mental health problems. She has been diagnosed with chronic depression,
post-traumatic stress disorder, neuro-musculoskeletal pain syndromes, chronic
lumbar sprain, chronic cervical sprain, tinnitus among others. She has been
seeing a psychiatrist since 2007 on a monthly basis (MR: Medical documents at
pp. 107-116, 134-140).
[9]
Ms.
Koca was convoked for a pre-removal interview at the Greater Toronto
Enforcement Centre, on April 15, 2009. When she attended on that date, she was
served with a negative PRRA decision and a negative H&C decision, both of
which were dated March 17, 2009. She was told to come back, on April 20, 2009,
for removal arrangements.
[10]
As a
result of the April 15, 2009 interview and in anticipation of deportation, the
Ms. Koca's mental health destabilized. She describes her reaction as
follows:
..she explained
the decision to me and I felt like I was going to fall. I was in shock. I felt
an emptiness and couldn’t understand the consequences of what she was saying. A
couple of days later, when I was home alone, I started feel like everything was
crashing. That night, when a friend explained to me the seriousness of my
situation, that I was on the edge of deportation, I became overwhelmed with
fear. I couldn’t sleep for a few nights. I felt like I was having a nervous
breakdown. I had a panic attack and couldn’t breathe.
(MR: Affidavit of Gulsum Koca at pp.
5-6).
[11]
Ms.
Koca decided to go and see a psychiatrist the next day, which was Monday, April
20, 2009. Her appointment with the Greater Toronto Enforcement Centre CIC (GTEC)
was therefore rescheduled, to April 22, 2009. On that day, she was given a
Direction to Report for Removal, on Saturday, May 9, 2009.
III. Issues
[12]
Whether
or not this application for an order, staying the execution of the removal
order made against Ms. Koca meets the tripartite test for the granting of a
stay in regard to the following factors to be considered:
a.
a serious issue;
b.
irreparable harm if deported from Canada;
c.
the balance of convenience, whether
in her favour.
(Toth v. Canada (Minister of Employment and
Immigration) (1988), 86 N.R. 302, 11 A.C.W.S. (3d) 440 (F.C.A.)).
IV. Analysis
A. Serious Issue
[13]
An
injunctive remedy constitutes an awareness by the Courts that there can be a
value in maintaining the status quo while issues are argued before the Courts,
the outcome of which are not at all certain, at the preliminary stage of the
proceedings. The role of a Court at an interlocutory and preliminary stage of
the proceeding has been clarified by the Supreme Court of Canada. In American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396, [1975] UKHL 1, Lord Diplock
described the limited role of the Court at the interlocutory stage:
It is no part of the court's
function at this stage of the litigation to try to resolve conflicts of
evidence on affidavit as to facts on which the claims of either party may
ultimately depend nor to decide difficult questions of law which call for
detailed argument and mature considerations. These are matters to be dealt with
at the trial.
(Manitoba (A.G.)
v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110 at para. 41).
[14]
The
Court has consistently established a low threshold for a finding of
“serious issue to be tried” in the context of stay motions. The Court has held
that it is merely necessary to show that the application before the Court is
not frivolous and vexatious (Turbo Resources Ltd. v. Petro Canada Inc.,
[1989] 2 F.C. 451, 13 A.C.W.S. (3d) 371 (C.A.); North American Gateway Inc.
v. Canada (1997), 74 C.P.R. (3d) 156, 71 A.C.W.S. 3d) 867 (C.A.); Copello
v. Canada (Minister of Foreign Affairs) (1998), 152 F.T.R. 110, 82 A.C.W.S.
(3d) 773 (T.D.); Sowkey v. Canada (Minister of Citizenship and Immigration),
2004 FC 67, 128 A.C.W.S. (3d) 777; Brown v.
Canada (Minister of Citizenship and Immigration), 2006
FC 1250, 152 A.C.W.S. (3d) 487).
[15]
In
the case at bar, the PRRA Officer failed to consider Ms. Koca’s conversion to
an evangelical form of Christianity when assessing the risks to
Christians in Turkey, and, as such, her
conclusion with regard to risk of persecution and risk to life and cruel and
unusual treatment or punishment was made in error and unreasonable.
Errors in PRRA
Decision
[16]
In
the PRRA decision the PRRA officer stated:
The
applicant has identified her Christian faith as a new risk development. The
applicant has provided a letter from the New Beginning Fellowship dated April
24, 2008, which confirms that she was baptized as Christian in January 2005. I
accept the applicant is a Christian, however I find there is insufficient
objective evidence she would face more that a mere possibility of persecution
under 96 or more likely than not face a risk as defined under section 97 of
IRPA, I acknowledge Turkey restricts freedom of religion, and there are
societal abuses and discrimination based on religious affiliation, belief and
practice as evidenced in the documentation provided by the applicant and my own
independent research. However, I find there is insufficient evidence that
discrimination in Turkey toward religious minorities amounts to
persecution or a risk to life as defined in section 96 or 97 of IRPA.
I
note in the documentation,
The
Constitution provides for freedom of religion and generally respected religious
freedom in practice; Christian and Baha’is faced a few restrictions and
occasional harassment for alleged proselytizing or holding unauthorized
meetings;
The
U.S. Government discusses religious freedom with the Government and state
institutions as part of its overall policy to promote human rights. Embassy and
consular representatives met frequently with government officials and
representatives of religious groups during the reporting period to discuss
matters relating to religious minorities.
Police
occasionally barred Christians from holding services in private apartments, and
prosecutors have opened cases against Christians for holding unauthorized
gatherings.
Jews
and Christians from most denominations freely practiced their religions and
reported little discrimination in daily life; however, citizens who converted
from Islam to another religion often experienced some form of social harassment
or pressure from family and neighbours.
Additional
documents indicate,
Reports
of attacks on persons practicing Christian faiths dropped. Authorities took
measures during the year to implement a June 2007 Ministry of Interior circular
to governors requesting action to prevent violence against non-Muslims.
Non-Muslims in Ankara, Izmir, and Trabzon reported that police took extra security measures during
special religious services.
I
acknowledge the applicant may face discrimination and possible harassment
however I find there is insufficient objective evidence that it would amount to
persecution as defined in section 96 or that she would likely than not face a
risk to life as defined in section 97 of IRPA.
(MR:
PRRA Reasons at pp. 248-249).
[17]
The
PRRA officer failed to consider the evidence that Ms. Koca had converted to an
evangelical form of Christianity and was a born again Christian. Part of being
a born again Christian is that it is very important for Ms. Koca to spread His
(God’s) word to the world. Ms. Koca had stated that she would be killed in Turkey for spreading God’s
word and that her family would never accept her conversion.
[18]
The
distinction between the treatment of Christians and Evangelical Christians in Turkey is crucial when
considering a person’s risks. The PRRA Officer’s failure to appreciate this
difference raises a serious issue.
[19]
The
PRRA Officer stated that “Reports of attacks on persons practicing Christian
faiths dropped,” however, in that same report, on the same page, the PRRA Officer
did not discuss the detailed information on attacks on Protestant Churches in
Turkey during the same reporting period.
[20]
Overall,
the PRRA Officer failed to consider the evidence that persons such as Ms. Koca,
born again Christians who proselytize are targeted for physical abuse and
mistreatment: One report indicates that “Istanbul police beat two Protestant converts in their
early twenties and told them they could not be both Turks and Christians.”
[21]
The
documents further state:
Violent
attacks and continued threats against non-Muslim during the reporting period
created an atmosphere of pressure and diminished freedom for some non-Muslim
communities. Religious pluralism was widely viewed as a threat to Islam and to
“national unity”
(Motion record at p. 301).
[22]
By
failing to appreciate the particular abuses by evangelical Christians, the PRRA
Officer’s treatment of the documentary evidence raises a serious issue.
B. Irreparable Harm
Risk to life and risk of
cruel and unusual treatment
[23]
This
Court has recognized that, where a person establishes on a balance of
probabilities that an Applicant is likely to face serious harm in the country
of origin, the irreparable harm test can be considered to be met.
[24]
The
documentary evidence, referred to in the above submissions, demonstrates that Ms. Koca
faces a risk to her life and safety as a Christian convert and in particular as
an Evangelical Christian.
Irreparable harm caused
by mental and physical disabilities
[25]
The
evidence describes the serious hardship Ms. Koca faces, given her
particular physical and mental disabilities, if she is forced to leave the
supportive community she has in Canada to return to a country where she has no
familial or other support. Given her precarious mental health, deportation will
be disproportionately felt by her, taking this case outside the realm of the
“usual consequences of deportation.”
Judicial
review rendered nugatory
[26]
This
Court has ruled that where an Applicant has raised a serious issue in the
context of a PRRA officer’s decision, the test of irreparable harm will be met.
In Resulaj
v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1168, 126
A.C.W.S. (3d) 305, this Court stated:
[5] This case involves the question whether
the assessment of personal risk to Ms. Resulaj was adequate. Removing her to
face that potential risk while the legal issue in her case is explored before
the Court would render nugatory any legal remedy that might ultimately be
available to her. Such circumstances constitute irreparable harm…
[27]
Similarly
in Ahmad v. Canada (Minister of
Citizenship and Immigration), 2003 FC 129, 126 A.C.W.S. (3d) 843, this
Court stated:
[8] Moreover, the nature of that serious
issue is such that if the Applicant were to be removed and the finding of the
PRRA officer were in error, the Applicant would indeed be exposed to risk if he
were now returned to Pakistan. That risk is such that his opportunity for
consideration of the risk that concerns him, should he be successful in his
Application for Leave and for Judicial Review, could not effectively be raised.
Thus, his right to raise a claim would be lost. That loss, in my view,
constitutes irreparable harm.
[28]
In
the Figuardo v. Canada (Solicitor General), 2005 FC 347, [2005] 4
F.C.R. 387,
decision,
at paragraph 45, in addition to the irreparable harm that would flow from the
judicial review being rendered nugatory, the Federal Court held that, where a
serious issue has been demonstrated with respect to a negative PRRA decision,
irreparable harm “will necessarily result” and the balance of convenience will
normally favour the Applicant. The Court held this to be the case because of
the issues at stake with a PRRA, namely that the Applicant would be exposed to
a risk to her life or cruel or unusual treatment or punishment if removed prior
to a judicial review concerning the risk. (Reference is also made to: Linares v. Canada (MCI &
MPSEP)
(May 11, 2005), IMM-2873-05, per Justice Eleanor Dawson, and Cupid v. Canada
(MCI) (April 11, 2006), IMM-1737-06, per Justice Frederick Gibson).
[29]
In
the recent Perez v. Canada (Minister of
Citizenship and Immigration), 2008 FC 663, 328 F.T.R. 290 (Order signed June
26, 2008) case,
the Federal Court recently certified the following questions:
1. Is
an application for judicial review of a Pre-Removal Risk Assessment moot where
the individual who is the subject of the decision has been removed from or has
left Canada after an application for stay of removal
has been rejected?
2. What
factors or criteria, if different or additional to those elucidated in Borowski
v. Canada (Attorney General), (1989) 1 S.C.R. 342 at p. 358-363, should the
Court consider in the exercise of its discretion to hear an application for
judicial review that is moot?
3.
If a judicial review of a Pre-Removal Risk Assessment is successful
after the applicant has been removed from or has left Canada, does the Court
have the authority to order the Minister to return the applicant to Canada
pending re-determination and, as the case may be, at the cost of the
government?
[30]
Given
that the issue of risk to Ms. Koca’s physical safety is at the core of the
challenged PRRA decision, her removal to Turkey now would
effectively render her application for leave and for judicial review moot. In
light of the jurisprudence regarding irreparable harm, the execution of a deportation
order, prior to a final determination concerning Ms. Koca’s application for
leave and judicial review, constitutes irreparable harm.
B. Balance
of Convenience
[31]
The
Federal Court has recently defined balance of convenience as being an
assessment of which party will suffer most: “In other words, whether the
applicant would be more harmed if interim relief were not granted then the
respondent will be harmed if it is granted.” (Copello, above).
[32]
The
balance of convenience clearly favours Ms. Koca and does not hinder the
interests of the Minister in awaiting the response of this Court in its final
determination on the application for leave and for judicial review of the above
specified decision.
[33]
The
balance of convenience rests with Ms. Koca. Deporting prior to avail thereby
risks irreparable harm to the Applicant who may succeed or have serious issues
to be tried by this Court (Membrano-Garcia v Canada (Minister of Employment and
Immigration)
(1992), 55 F.T.R. 104, 34 A.C.W.S. (3d) 313).
V. Conclusion
[34]
For all of the above reasons, the Applicant’s motion for a stay of the execution
of the removal is granted pending a final determination of her application for
leave and for judicial review of the negative PRRA decision in her regard.
JUDGMENT
THIS COURT ORDERS that the Applicant’s
motion for a stay of the execution of the removal be granted pending a final
determination of her application for leave and for judicial review of the
negative PRRA decision in her regard.
“Michel M.J. Shore”
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