Date: 20070729
Docket: IMM-2938-07
Citation: 2007
FC 792
Ottawa, Ontario, July 29, 2007
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
MONICA
STREANGA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
I. OVERVIEW
[1]
The affirmative responses to addressing the fragility of the
human condition must be weighed or balanced to ensure that the integrity of the
immigration system is not compromised by the protection it offers to individuals
who claim but may not be at risk.
[2]
Human cargo “shipped” for the sex trade is composed of
individuals who become pawns of which Canada becomes the recipient; thus, the
one question of each respective individual who often remains voiceless in that
human cargo is simply formulated as, could such an individual be at risk from
the “recruiting agent” or agents, if returned?
[3]
The evidence before the Pre-Removal Risk Assessment (PRRA)
Officer showed that individuals in similar situations, who have escaped from
their human traffickers, are often recaptured even when they seek refuge in
women’s shelters. (Institute for War and Peace Reporting No. 460)
[4]
In addition, the evidence demonstrates that the European
Parliament has expressed its concern at the serious and continuing problem of violence
against women which is having major implications in terms of trafficking in
women and their sexual exploitation inside and outside of their countries of
origin. (800,000 annual known victims in the human trafficking cartel according
to statistics – Motion - European Parliament Resolution on Accession of Romania
to the European Union, 2006/2115 (INI)
II. INTRODUCTION
[5]
This
is a motion heard with respect to an Application for Leave and for Judicial
Review of the decision of a PRRA Officer in which he found that the Applicant
is not a person in need of protection. The Applicant seeks an order staying her
removal until such time as the Application for Leave and for Judicial Review is
determined.
III. ISSUES
[6]
Whether
or not this application for an order, staying the execution of the removal
order made against the Applicant, meets the tripartite test for the granting of
a stay, in that:
·
the
Applicant has raised a serious issue;
·
the
Applicant would suffer irreparable harm if deported from Canada; and
·
that,
on the balance of convenience, giving consideration to both parties, the stay
should be ordered. (Toth v. Canada (MEI) (1988), 6 Imm. L.R. (2d) 123 (F.C.A.))
IV. ANALYSIS
A. Serious
Issue
[7]
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. (North American Gateway Inc. v. Canada (Canadian
Radio-Television and Telecommunications Commission), [1997] F.C.J. No. 628
(C.A.) (QL))
[8]
“Serious issue” has also been described as an issue which is “not
frivolous and vexatious.” This Court has held that whether the issue or issues
meet the test for leave need not be determined at this stage. (Sowkey v. Canada (M.C.I.), [2004]
F.C.J. No. 51 (QL)
[9]
In Brown v. Canada (MCI), 2006 FC 1250, the Court noted
that the test concerning a serious issue on an application for a stay, is that
there be an issue that is not frivolous or vexatious, this being a lower test
than the test applied at the leave stage, namely whether there is a “fairly
arguable case.”
[10]
The
PRRA Officer concluded that since the Romanian government has “taken serious
measures” to punish those responsible for trafficking, that state protection
would be available to the Applicant upon her return. The Officer has applied
the wrong legal test to state protection, and instead has not asked himself
whether the Romanian state can provide effective protection to victims of human
trafficking who fear retribution from their past traffickers. (Motion Record,
pages 170-171)
[11]
Federal
Court jurisprudence has indicated that a willingness to provide adequate
protection to victims of gender violence is not enough for a finding of state
protection to be considered reasonable. The PRRA Officer relies on the fact
that the government “worked with domestic and international NGOs to build
public awareness of trafficking and to improve and expand services offered to
victims. Public officials, including the president, made public statements
during the year about the trafficking problem.” (Motion Record, page 171)
[12]
The Officer
relies on a “National Anti-trafficking Agency (ANTIP)” which the United States
Department of State (DOS) Report states during 2005 “…focused on hiring
staff and worked to become operational.” This quoted section of
the DOS Report also refers to the fact that the
Romanian government has “approved a new national
strategy against trafficking in November, and plans for implementation of that
strategy continued at year’s end. “ Contrary to the finding of the PRRA
Officer, the existence of this agency is not evidence of effective state
protection, as it is too soon to know whether such initiatives have really
taken hold and are truly an effective mechanism to protect women from human
trafficking. This agency is still hiring staff and is not yet operational.
(Motion Record, pages 170-171)
[13]
Moreover,
the jurisprudence does not require an Applicant to seek protection from
non-state actors, such as NGOs, who cannot be expected to provide the actual
protection from agents of persecution that the police should be providing. (Molnar
v. Canada (MCI), [2002] F.C.J. No. 1425 (T.D.) (QL); Singh v. Canada (MCI), [2004] F.C.J. No. 1016
(T.D.) (QL))
[14]
Public
pronouncements and public awareness, as well as services for women who have
already been victimized, do not amount to state protection. In light of
the evidence of the serious inadequacies of the Romanian police (particularly concerning
the amount of corruption in the police force) in combating and preventing human
trafficking, the PRRA Officer’s reliance on the standard of “serious measures”
is wrong.
[15]
The
Applicant submits that the PRRA Officer has erred in viewing the legal test as
one of “serious measures”. The Federal Court in Elcock v. Canada (MCI),
[1999] F.C.J. No. 1438 (T.D.) (QL), at paragraph 15, established, that for
adequate state protection to exist, a government must have both the will and
the capacity to effectively implement its legislation and programs:
Ability
of a state must be seen to comprehend not only the existence of an effective
legislative and procedural framework but the capacity and the will to
effectively implement that framework.
[16]
In Mitchell
v. Canada (MCI), 2006 FC 133, the Federal Court determined that the
evaluation of state protection involves evaluating a state’s “real capacity” to
protect its citizens. The Court noted that it is an error to look to a state’s
good intentions and initiatives, if the real capacity of the state to protect
women from violence was still inadequate.
[17]
In Garcia
v. Canada (MCI), 2007 FC 79, the Federal Court held that a state’s “serious
efforts” to protect women from the harm of domestic violence are not met by
simply undertaking good faith initiatives. The Court stated at paragraph 14:
It
cannot be said that a state is making “serious efforts” to protect women,
merely by making due diligence preparations to do so, such as conducting
commissions of inquiry into the reality of violence against women, the creation
of ombudspersons to take women’s complaints of police failure, or gender
equality education seminars for police officers. Such efforts are not
evidence of effective state protection which must be understood as the
current ability of a state to protect women…
Garcia elaborates on the meaning of “serious efforts”
at paragraph 16:
…
the test for “serious efforts” will only be met where it is established that
the force’s capability and expertise is developed well enough to make a
credible, earnest attempt to do so, from both the perspective of the woman
involved, and the concerned community. The same test applies to the help that a
woman might be expected to receive at the complaint counter at a local police
station. That is, are the police capable of accepting and acting on her
complaint in a credible and earnest manner? Indeed, in my opinion, this is the
test that should not only be applied to a state’s “serious
efforts”
to protect women, but should be accepted as the appropriate test with respect
to all protection contexts.
[18]
Justice La Forest stated in Canada (Attorney General) v.
Ward,
[1993] 2 S.C.R. 689 at 724 that “it would seem to defeat the purpose of
international protection if a claimant would be required to risk his or her
life seeking ineffective protection of a state, merely to demonstrate that
ineffectiveness.”
[19]
Evidence
of improvement and progress by the state is not evidence that the
current response amounts to adequate, effective protection. As held in the
Federal Court decision of Balogh v. Canada (MCI), [2002] F.C.J. No. 1080
(QL) at paragraph 37, a state’s willingness to provide protection is not
enough:
I
am of the view that the tribunal erred when it suggested a willingness to
address the situation…can be equated to adequate state protection.
[20]
In
reasoning that since the Romanian state had prosecuted the men who had
trafficked her in the past, this would mean that the Applicant would be able to
access state protection “as she did previously”, the PRRA Officer misapprehends
that even though her traffickers were eventually prosecuted and spent some time
in jail, that she would not be at additional risk now from her traffickers, in
that they would want to seek retribution against her for her role in their
imprisonment. The PRRA Officer does not analyze this aspect of her fear in
considering whether she would face a risk to her life, or risk of cruel and
unusual treatment or punishment.
[21]
It
is important to note that the PRRA Officer made no credibility findings
concerning the Applicant’s affidavit or the new evidence.
[22]
The
evidence before the PRRA Officer showed that other Romanian women who have
escaped their traffickers are often recaptured by them when they seek refuge in
women’s shelters. The Applicant has attested that she fears her former
traffickers will indeed find and put her at serious risk. (Motion Record, pages
6, 18 and 141)
[23]
No basis in the evidence exists
to assume the Romanian police have developed sufficient capability and expertise
to make a credible, earnest attempt to arrive in time to protect a person, such
as the Applicant, from her traffickers before she is subjected to harm.
(Garcia, supra)
[24]
The
PRRA Officer has erred in failing to recognize that while the Romanian state
has made some commendable efforts in its attempt to stem human trafficking, and
enacted laws to prosecute traffickers, the documentary evidence treating the
scale of trafficking in women and children in Romania indicates that sample
prison terms, in and of themselves, simply, are not effectively addressing the
problem and protecting women in the Applicant’s position.
[25]
When
one considers the ratio of traffickers convicted—146—to the number of
identified trafficking victims of 2, 250, this constitutes a small proportion.
This figure of trafficking victims is likely much lower than in reality, as it
comprises only the victims that have been identified and counted by official
statistics. Given that trafficking involves degradation and sexually based
offences, the actual number of victims is much
higher, with many women not reporting their abuse and ordeals to the police.
(Motion Record, pages 131-132, 169 and 171)
[26]
The Officer fails to
provide any analysis of the issue of corruption in the police force, identified
as rampant in several of the sources, and how this would effect the ability of
the Applicant to receive on-the-ground protection, at the local level, from the
individuals she fears. The DOS Report cites police corruption as being a major
obstacle in effectively protecting women in the Applicant’s position. The DOS
Report states: “Corruption in the police, particularly local forces,
contributed to trafficking. There were frequent allegations that border police
and customs agency officials accepted bribes to ignore cases of trafficking.”
[emphasis added]
[27]
The
Officer mentions this noted serious deficiency, but then fails to provide any
reasoning as to how it applies to his state protection finding. In this sense,
in addition to not analysing this evidence, the Officer’s reasons are also
inadequate.
[28]
Amnesty
International concludes that the law against trafficking in Romania has not led to any
noticeable improvement in the serious problem of human trafficking. In
reported cases, law enforcement officers failed to take effective action to
protect women. Other sources note the endemic problem looms large. Although
prosecutions are taking place, these do not include the “coordinators of the
criminal networks”. (Motion Record, pages 82, 94 and 154)
[29]
The
Officer does not address this evidence. Instead, the Officer refers to only
one documentary source in his reasons, the DOS Report for Romania, quoting large sections
of it. No weighing of the evidence or reference to other sources of evidence
that support the Applicant’s submissions about police corruption and lack of
police effectiveness is mentioned by the PRRA Officer. (Motion Record, pages
169-170)
[30]
The
PRRA Officer also fails to address the Applicant’s fears that:
·
Constantin
is described as a recidivist criminal in the Romanian Court judgment, indicating
that previous criminal punishment did not deter him from committing further
crimes.
·
Constantin
demonstrated that he was not afraid of the police in yelling out a death threat
against the Applicant, at the police station, in front of police officers.
·
Constantin’s men continued to visit the Applicant and her mother
after she was able to escape from them. After she gave her statement to the
police, they continued to look for her subsequent to her departure from Romania
for Hungary, and after members of the trafficking ring were convicted on
April 25, 1998.
·
The Applicant’s mother has learned from a friend of the Applicant,
Maia, that Constantin has returned and is living in Arad;
furthermore, there is a connection to Constantin as Maia’s ex-boyfriend was in
jail with Constantin and is still known to him.
·
Constantin and the other men, convicted in 1998, have a new and
strong reason to take issue with the Applicant and to cause her harm. (Motion
Record, pages 6, 11, 17 and 32)
[31]
This
information should have been addressed in assessing state protection. At a
minimum, a need exists for the matter to be considered. As no reference is made
to this evidence, it appears to have been ignored. (Cepeda-Gutierrez v.
Canada (MCI), [1998] F.C.J. No. 1425 (T.D.)(QL))
[32]
As
stated by Justice Evans in Cepeda-Gutierrez, supra, at paragraphs
15 and 17:
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. …
…
However,
the more important the evidence that is not mentioned specifically and analyzed
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": Bains v. Canada (MEI) (1993), 63 F.T.R. 312 (F.C.T.D.).
In other words, the agency's burden of explanation increases with the relevance
of the evidence in question to the disputed facts. Thus, a blanket statement
that the agency has considered all the evidence will not suffice when the
evidence omitted from any discussion in the reasons appears squarely to
contradict the agency's finding of fact. Moreover, when the agency refers in
some detail to evidence supporting its finding, but is silent on evidence
pointing to the opposite conclusion, it may be easier to infer that the agency
overlooked the contradictory evidence when making its finding of fact.
[Emphasis added]
[33]
This
has been found to be a reviewable error by this Court. As held by Justice Lemieux
in Man v .Canada ( MCI), 2004 FC 258, the failure of the PRRA Officer to
demonstrate a resolution in respect of conflicting evidence on an important
risk issue was considered to be a serious issue in the context of the stay
motion.
[34]
In Ahmad v. Canada (MCI), 2003 FC 1295, the Court
held that “there was some objective evidence contrary to that found by the PRRA
officer in certain of the documents before her which were not referred to in
her decision. Thus, a key basis of her decision, and whether that basis was
patently unreasonable on the evidence before her, is raised as an issue by the
underlying Application for Judicial Review”.
[35]
In Resulaj v. Canada (MCI), 2003 FC 1168, the
Court concluded that a serious issue existed because, “looking at the officer's
reasons as a whole, I am satisfied that Ms. Resulaj has raised a serious issue;
namely, whether the PRRA officer's conclusion that she did not satisfy any of
the grounds for protection was supported by the evidence.”
[36]
The
Officer should have, at minimum, addressed the evidence cited in the above
paragraphs and provided an explanation as to why it did not carry any weight in
his determination. The Officer’s reasons instead are silent on why these
factors did not affect her finding on state protection. (Ali v. Canada (Solicitor General), [2006] F.C.J. No. 322
(QL))
B. Irreparable
Harm
[37]
If
deported to Romania, it would
seem that the Applicant would suffer irreparable harm. This is due to a serious
risk to her life or cruel and unusual treatment at the hands of the men who
formerly trafficked her into prostitution.
[38]
In
the Figurado decision, in addition to the 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 because of the issues at stake with a PRRA—that
an applicant would be exposed to a risk to her life or cruel or unusual
treatment or punishment if removed prior to a judicial review dealing with
serious issues concerning that risk. (Figurado v. Canada (MCI), [2005] 4
F.C.R. 387 at paragraph 45)
[39]
Moreover,
in the decisions of Carlos Urbina Linares v. MCI & MPSEP, May 11,
2005, IMM-2873-05, Marva Coombs v. MCI, January 30, 2007, IMM-339-07 and
in Keturah Laverne Cupid v. MCI, April 11, 2006, IMM-1737-06, Justices
Dawson and Gibson respectively, applied Figurado and held that
applicants who had demonstrated serious issues to be tried with respect to
judicial review applications of PRRA decisions, had necessarily established
irreparable harm.
[40]
This
Court has ruled that where a 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, supra, this Court stated:
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.
[41]
Similarly
in Ahmad, supra, at paragraph 8, this Court stated that:
Moreover,
the nature of that serious issue [an error in the PRRA] is such that if the
Applicant were to be removed and the findings 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 be raised. Thus, his right to raise a claim would be
lost. That loss, in my view, constitutes irreparable harm.
[42]
Given
that the issue of risk to the Applicant’s physical safety is at the core of the
challenged PRRA decision, removal of the Applicant to Romania, now, would
effectively render her application for leave and for judicial review moot, in
that she would be exposed to the very risks which she argues in her PRRA would
result in her not being deported to Romania. In light of the jurisprudence
regarding irreparable harm, execution of a deportation order, prior to a final
determination concerning her application for leave and judicial review,
constitutes irreparable harm.
[43]
The
Applicant states that she would have to return to live with her mother in Arad, Romania. That is
the only place she has to go, as she is not in a financial position to go
anywhere else. She has learned that the former leader of the trafficking ring,
Constantin, is now released and living in Arad. (Motion
Record, pages 6, and 17-18)
[44]
In Melo v. Canada (MCI), [2000] F.C.J. No. 403
(T.D.), the Court states that to find irreparable harm, there must be prejudice
beyond that which is inherent in the notion of deportation itself. These
circumstances engage interests beyond those which are inherent in the nature of
a deportation. The Applicant appears to be at risk of physical and sexual
assaults, as well as the possibility of being forced back into prostitution
against her will in her country of origin. The documentary evidence supports
her fears and sets out the sophisticated manner in which the traffickers
operate to hide their operations from the police. (Motion Record, page 142)
[45]
In Brown v. Canada (MCI), 2006 FC 1250, the Federal
Court emphasized that the test for a stay with respect to irreparable harm,
being set out in RJR-Macdonald Inc. v. Canada (Attorney General), [1994]
1 S.C.R. 311 and Toth, supra, was met when risk to a woman’s life
at the hands of her abusive partner was alleged.
[46]
The Brown decision dealt with an applicant in
regard to a negative PRRA decision, who faced serious harm at the hands of a
past abusive partner. Justice Harrington compared the risk to a woman’s life
who feared her former abusive partner’s threats to her life if she returned to
St. Vincent, with the irreparable harm at stake in the cases of RJR-Macdonald
and Toth, both of which dealt with economic interests, and found that those
latter cases, simply, did not compare to the applicant’s situation, in that the
harm contemplated to the applicant was much greater.
[47]
In
the Moktari decision, an applicant for a stay of deportation argued that
he would face irreparable harm involving risk to his liberty and life if he
were returned to Iran. The Court found
that the applicant’s evidence concerning
irreparable harm was “general and limited,” but nevertheless found that he had
demonstrated sufficient, uncontradicted evidence that he would face
consequences not compensable in damages, and granted a stay of removal. In the
present case, the uncontradicted evidence is specific, timely and compelling,
and the Applicant has demonstrated that she faces irreparable harm if returned
to Romania. (Moktari v. Canada
(MCI), [1997] F.C.J. No. 1648 (T.D.) (QL), at paragraphs 11 and 13)
C. Balance of
Convenience
[48]
This
Court has defined balance of convenience as being an assessment of which party
will suffer most (Copello
v. Canada (Minister of Foreign
Affairs),
[1998] F.C.J. No. 1301 (T.D.), per Hugessen J.):
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.
[49]
The balance of
convenience favours the Applicant and does not hinder the interests of the
Minister in awaiting the timely response of this Court in deciding her
application for leave to judicially review the Officer’s decision.
[50]
The
serious risk to her life that she faces if returned to Romania at this
point and the fact that her PRRA judicial review application would be rendered
nugatory indicate that she would be more greatly harmed, in comparison to the
Minister, if the requested interlocutory relief is not granted pending a
decision on her underlying application for judicial review.
[51]
As
held by the Federal Court in Brown, supra, at paragraph 8
concerning the balance of convenience: “if a stay is granted and the
underlying application is dismissed, the inconvenience to the Minister is a
slight delay in enforcing the removal. If a stay is not granted, the
underlying application is successful and a new hearing ordered, it may be moot
as in the meantime Ms. Brown may have been murdered in St. Vincent.”
ORDER
THIS COURT ORDERS that the execution of the removal
order is stayed until the deposition of the leave application and if leave is
granted, until such time as the application for judicial review is disposed of
by the Court.
“Michel M.J. Shore”
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