Date: 20081114
Docket: IMM-4861-08
Citation: 2008
FC 1277
Ottawa, Ontario, November 14, 2008
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
TIGIST DAMTE
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
I. Introduction and Background
[1]
These
reasons relate to an application by Tigist Damte, a citizen of Ethiopia, age 40 who seeks a stay from
her removal to the United
States scheduled
for 9:00 a.m. on November 18, 2008. The underlying application for leave and
judicial review is the November 3, 2008 decision of Enforcement
Officer Martin (the Officer) not to defer her removal pending the determination
of her second Pre-Removal Risk Assessment (PRRA) filed on March 28, 2008.
[2]
Her first
PRRA application filed in March of 2007 was refused on December 3,
2007 after her refugee claim was refused by decision of the Refugee
Protection Division (RPD) dated January 12, 2006.
[3]
The fear
which she expresses is of the Ethiopian authorities on account of her sur place
activities in opposition to the existing government in Ethiopia. After she arrived in Canada in November
2004 from the United
States to which
she came in 2001 from Germany where she had studied and resided from
1990 to 2001 except for a short period of time in 1998 when she
returned to Ethiopia to visit her father who was
ill and to complete some studies. She claims to have been detained by the
Ethiopian authorities on account of her political activities in Germany as a member of an opposition
party. She made a refugee claim in the United States on the basis of her sur place activities
in Germany and in the United
States. That
claim did not succeed.
[4]
In its January
12, 2006 decision, the RPD dealt with her allegation she was arrested and
detained in 1998 by Ethiopian police on account of the membership in Ethiopian
Peoples Revolutionary Party (EPRP). The RPD found her allegation not to be
credible as to her past persecution.
[5]
The RPD
also analysed the applicant’s sur place claim. It was not satisfied she was a
member of EPRP in Germany. In terms of her activities
in the United
States, the
panel was not persuaded she was an active member of EPRP. It commented upon a photograph
of her at a demonstration in the United States concluding on the evidence before it “there is no evidence
that the claimant was photographed by anyone from the Ethiopian government at
this event”. The panel concluded, however, she had attended the U.S. demonstration in 2001 but was not
persuaded “she would have come to the attention of the Ethiopian authorities”.
[Emphasis mine]
[6]
The RPD
then turned it mind to the applicant’s activities in Canada. It concluded she was a member of the
All Ethiopia Unity and Cultural Organization in Toronto but was not an active member with her
political activities being minimal. Photographs at a demonstration in Toronto were submitted but the RPD said
“other than photographs of people she knew the claimant has no evidence that
the Ethiopian government is aware of their activities”. It referred to the
Gilkes Report where it was stated that any known opposition member returning
from abroad to Ethiopia faced a very real
possibility of being detained and interrogated but said it was not satisfied
the applicant was known to the Ethiopian authorities. The panel referred to
an IRB response to information request in 2004 no evidence was found “that
the government in Ethiopia is videotaping the demonstrations”. [Emphasis mine]
[7]
It is also
useful at this point to summarize the findings of the PRRA officer who rejected
the applicant’s first PRRA on December 3, 2007. Those findings were:
a. The risks the applicant
involved in her PRRA were largely the same as those which were before the RPD.
b. Beginning on November 1, 2005,
“violent anti-government protests allegedly organized by the opposition
occurred in Addis Abba resulting in the arrest of opposition leaders and
members of the independent media and civil society groups for alleged
participation in “unlawful activity”. It observed that the security forces
“also detained between 30,000 and 50,000 demonstrators without charge. Military
intervention led to widespread abuses such as arbitrary detention and
killings”.
c. It referred to a letter of
support for Ms. Damte submitted by Amnesty International (AI) and the view of
that organization “of risk of return to Ethiopia for known and suspected activists as
well as members and supporters of opposition groups”. According to the PRRA officer,
AI’s letter focused on risk of return of “prominent political figures or else
had significant links to such persons”. The applicant, so held the PRRA officer,
did not have that kind of profile.
d. He then reviewed the
applicant’s activities in Canada, concluding there is “insufficient
evidence to support that she has done anything to come to the attention of the
Ethiopian authorities or that she has undertaken activities which position her
as being of particular interest to the ruling government”. [Emphasis mine]
[8]
It is clear
to the central issue in her Canadian refugee hearing and her PRRA application was
whether her political activities in the United States or in Canada would likely have come to the attention
of the Ethiopian authorities. In this connection, the central aspect of her
second PRRA application was the inclusion of “new evidence” which became known
in June 2006 through newspaper accounts that the Ethiopian Embassy in Washington had since 2003 set up a
programme to videotape Ethiopian nationals abroad as there were demonstrating against
the authorities of that country. [Emphasis mine]
[9]
It is
conceded by counsel for the applicant this evidence of videotaping of
anti-government demonstrators by Ethiopian embassy officials should have been
submitted as new evidence during the first PRRA application submitted on her
behalf on February 3, 2007. She said the fact that it was not filed was
an oversight by previous counsel.
[10]
The
applicant sought leave and judicial review from her negative first PRRA
decision. Her new counsel moved to stay her removal from Canada pending determination of the
leave application. In the context of that stay motion, the new evidence concerning
the videotaping of anti-government demonstrators was included in her stay
motion. Justice Gibson, by order dated February 11, 2008, granted the stay.
In his order, as one of the considerations for the grant of the stay, Justice
Gibson mentioned the fact that counsel had acknowledged before him the ultimate
destination if removal was carried out “will be Ethiopia and not the United States of America”. Justice Gibson went on to
write:
The Court concluding that, against the
established low threshold for a serious issue to be tried, a serious issue to
be tried here arises, irreparable harm that is non speculative has been
established given the political activities in which the Applicant has engaged
while outside Ethiopia which are likely to have come to the attention of
Ethiopian authorities or to come to the attention of those authorities of the
Applicant is removed from Canada and that, given the foregoing, the balance
of convenience favours the Applicant; [Emphasis mine]
[11]
Leave was
granted to the applicant to challenge the first PRRA decision. Her judicial
review application was dismissed on October 8, 2008 by the Honourable
Louis Tannenbaum, Deputy Judge of this Court (see Damte v. Canada (Minister of Citizenship and
Immigration),
2008 FC 1137). With respect to the PRRA officer’s reasons Judge Tannenbaum
wrote at paragraph 12 of his reasons:
In assessing the reasons as a whole, it appears clear to me that
the PRRA Officer did not apply the wrong test. The Officer found from the
documentary evidence that only prominent opposition members faced persecution
and that there was no evidence that Ms. Damte fit that category. In assessing
the level of risk to her based on her political activities during her time
outside Ethiopia, the Officer was clearly
looking to see if there was evidence to show that she would personally be known
to authorities there as a sufficiently notable opposition party member to
target. To prove personal risk, Ms. Damte needed to show that she would
personally come to the attention of authorities. This was not an incorrect
assessment, and the decision will not be vacated on this point.
[12]
Counsel
for the applicant on the stay motion was the same person who appeared as her
counsel before Judge Tannenbaum. This Court inquired whether the new evidence
was in the applicant’s record before him or whether it was referred to him. I
was informed in the negative in either case because of the rule that on judicial
review the record before the PRRA officer is the record on judicial review. In
short Judge Tannenbaum did not have the benefit of the new evidence.
II. The Decision to Refuse to Defer
[13]
The
officer expressed his reasons for refusing to defer in his notes to file. He
first observed that the request for deferral was based on the existence of the
outstanding second PRRA filed on March 28, 2008 and that deferral should be
until the second PRRA was decided. He framed the issue as “deferral for the outstanding
subsequent PRRA” noting there was no statutory or regulatory stay attached to a
subsequent PRRA application. He outlined the following considerations:
The new evidence in question was not
included in her first PRRA claim made in March 2007. According to counsel, the
evidence was available for submission in June 2006. This evidence was never
submitted in error of counsel on the initial PRRA. The evidence was available
to submit in March 2007. Failure to do so cannot result in a deferral of
removal.
The evidence, which was submitted as
proof of irreparable for previously filed litigation (IMM-549-08) was dismissed
on 08 October 2008.
In stating “her PRRA application was
filed seven months ago, a decision should be imminent.” No evidence
was provided to support this claim. A PRRA decision could take as little as 3
months or as long as 2-3 years under normal circumstances. [Emphasis mine]
[14]
He
expressed his conclusions as follows:
Given the facts and timelines of the
case, I believe a deferral is not warranted. There is no regulatory or
statutory requirement to defer the removal of a foreign national while awaiting
a decision of a subsequent PRRA.
While I have been delegated the authority
to authorize a deferral under the Act, I am bound by the fact that
Canada Border Services Agency as part of the Department of the Solicitor
General of Canada has an obligation under section 48(2) of the Immigration
and Refugee Protection Act to carry out removal orders as soon as
reasonably practicable.
While I am sympathetic to the situation
that Ms. Damte is faced with, after careful consideration of the facts relevant
to the requested deferral, I decline to grant the request for deferral based on
the reason provided. Ms. Damte is required to report for removal as was
previously arranged on November 18, 2008 at 9:00a.m. to the United States.
[15]
It is not
disputed that in support of the stay request, the officer was provided with the
second PRRA and submissions which concerned the videotaping of opposition
demonstrators.
III. Analysis
[16]
It is
settled law that in order for an applicant to obtain a stay of his/her removal
from Canada the applicant must make out conjunctively three elements: (1)
serious issue to be tried; (2) irreparable harm; and (3) that the balance of convenience
favours the applicant.
(a) Serious Issue
There are two exceptions to the principle that the
determination of a serious question to be tried is a low hurdle, namely, that
the reviewing judge must not delve deeply into the merits of the question
raised but only canvass whether that question is frivolous or vexatious. One of
those exceptions is when the grant of an interlocutory injunction will
effectively grant the relief he/she seeks in the judicial review application
which is the case here – the deferral of her removal from Canada. In such a case there is a
likelihood of success raised by the serious questions is the applicable
standard.
[17]
Counsel
for the applicant accepts that the higher threshold applies and that the
applicant meets it. She argues the officer erred in the following ways:
a. First, he made a serious error
of fact when he stated the new evidence was dismissed on October 8, 2008 by
Judge Tannenbaum. That evidence, as already noted, was not before the judge.
b. Second, the counsel for the
applicant points to the statement made by the Officer that failure to adduce
the new evidence at the first PRRA application “cannot result in a deferral of
removal”. She argues such failure may not be fatal; it depends upon the
circumstances pointing to Justice Mosley’s decision in Wong v. Canada
(Minister of Public Safety and Emergency Preparedness), 2008 FC 783 dealing
with a decision by an enforcement officer not to defer removal pending the
determination of a second PRRA when the applicant had failed to file a first
PRRA after having been given an opportunity to do so.
c. Third, the officer erred when
he refused to defer because the decision on the second PRRA was not imminent.
d. In terms of irreparable harm,
she argued I should apply the doctrine of issue estoppel or the principle of
judicial comity to Justice Gibson’s finding on the stay application based on
the new evidence the applicant’s activities sur place would likely come to the
attention of the Ethiopian authorities.
[18]
Despite
the argument of counsel for the respondent that the reasons when read as a
whole do not disclose a question likely to succeed, I find the following
serious issues:
- The failure of the officer to
consider the important new evidence simply because it had not been
presented before the second PRRA when it was otherwise available. Errors
of former counsel do not necessarily foreclose the consideration of such
evidence. The jurisprudence is clear on this point. This erroneous view
taken by the officer led him not to consider relevant evidence which had
not been considered before and could materially affect the risk analysis
in her situation.
- The officer erred when he concluded
the new evidence had been considered by Judge Tannenbaum. It was not. Once
again, this error led the officer not to consider the new evidence which
was before him in the second PRRA which had been submitted to him in the
materials provided by the applicant on its request for deferral.
(b) Irreparable harm
[19]
I consider
that irreparable harm has been made out because on the material before me, I
find that the ultimate destination for the applicant’s removal is Ethiopia, where a judge of this Court
have found based on the new evidence which only he, and now I, have had an
opportunity to consider.
[20]
Counsel
for the Minister accepted before Mr. Justice Gibson that deportation to Ethiopia was the ultimate country of
removal. Counsel for the Minister now says there is no evidence that such is
the case but provides no evidence why it is so when previous Minister’s counsel
said it was. In my view, the Minister had an obligation to explain to the Court
and provide it with evidence which led to such an important change because I
agree with the Minister’s counsel that deportation to the United States in not
proof of irreparable harm and normally there must be evidence of removal from
the United States to the country of nationality.
(c) Balance of convenience
[21]
In the
circumstances, having made out serious issue and irreparable harm, the balance
of convenience favours the applicant.
(d) Conclusion
[22]
For these
reasons, the application for a stay of removal is granted.
ORDER
THIS COURT ORDERS the stay of the applicant’s
removal to the United
States scheduled
for November 18, 2008 until a decision is made whether to grant leave and, if
leave is granted, until the judicial review is determined.
“François
Lemieux”
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