Date: 20081112
Docket: IMM-4161-08
Citation: 2008 FC 1256
Ottawa, Ontario, November 12, 2008
PRESENT: The Honourable Orville Frenette
BETWEEN:
Erius
ALLIU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1]
This
is a motion for an order staying the execution of a deportation order of the
applicant scheduled to be executed on Thursday, November 13, 2008 at 12:45 p.m.
[2]
The
applicant is a citizen of Albania who came to Canada in September
2002, when he was 18 years old. He sought protection on two grounds, namely:
1. Fears a
return on political grounds;
2. Fears the
risk of being prosecuted as a military draft evader.
[3]
The
Immigration and Refugee Board rejected the applicant’s claim of risk in Albania because of
his lack of credibility and lack of evidence that he would be persecuted if
returned because of his involvement with the Democratic Party.
[4]
On
April 19, 2004, the applicant submitted an application for residence in Canada based upon
humanitarian and compassionate grounds (“H&C”).
[5]
This
application was dismissed on September 4, 2008; he had been ordered deported to
Albania on May 16,
2008 but an administrative deferral had been granted for three months.
[6]
In
2007, the applicant filed a Pre-Removal Risk Assessment (“PRRA”), which
application was rejected by decision dated April 9, 2008.
[7]
The
applicant did not ask for a review of the PRRA decision but presented an
application of review against the H&C decision.
The H&C decision of
September 4, 2008
[8]
The
officer discussed the applicant’s concerns and fears of return to Albania
resulting from his political activities, his involvement, his integration and
his establishment in Canada. The applicant relied upon his employer’s,
Grizzly Concrete Cutting Inc., letter for the loss of his services.
[9]
There
was no discussion about the issue of military service evasion or its
consequences. The officer mentioned the applicant’s involvement with community
services, his uncle’s sponsorship and the fact he learned both official
languages of Canada.
[10]
The
officer lists the information he consulted including, the Refugee Protection
Division’s decision and the applicant’s PRRA application and negative decision
rendered without a subsequent application for judicial review. He concluded
that the applicant’s circumstances, based on all information, did not justify
an exemption based on sufficient H&C grounds.
[11]
The
officer did not address the applicant’s personalized risk if returned to Albania. The
applicant seeks a stay of removal until the disposition of the judicial review
of the H&C decision, if leave is granted.
[12]
The
Federal Court of Appeal in Toth v. Minister of Employment and Immigration
(1988), 86 N.R. 302, establishes the conditions justifying a stay, i.e.:
1.
There is a serious
issue to be tried;
2.
Irreparable harm will
be caused if the stay is not granted; and
3.
The balance of
convenience favours the applicant’s request.
This
test is conjunctive, i.e. all conditions must be met.
[13]
The Webster’s New
Dictionary and Thesaurus (1990), at page 884, defines “serious” as
“acute, alarming, central, crucial, dangerous, deep, … important, … severe, …
significant, … urgent, weighty …”. It would seem that a stay of removal, being
a last minute process to avoid removal, that the condition of “serious issue” would
have been applied literally. However, the jurisprudence of the Federal Court
has opted for a very low threshold for a finding of a “serious issue to be
tried”.
[14]
The
case law has decided that a court must simply assess whether the issues are, on
their face, neither frivolous nor vexatious (see, for example, Williams v.
Minister of Citizenship and Immigration, 2001 FCT 851, and Oberlander v.
Attorney General, 2003 FCA 134, at paragraph 20).
[15]
In
Sowkey v. Minister of Citizenship and Immigration, 2004 FC 67, Justice
Phelan stated at paragraph 17:
None of these issues, in my view, are
frivolous or vexatious. Whether they meet the test for leave need not be
determined at this stage.
[16]
The
applicant now raises three issues:
1. The military
service issue.
2. The general
conditions in Albania of
corruption and crime.
3. His degree of
integration and establishment in Canada.
The military
service issue
[17]
The
applicant submits the officer failed to consider the undue hardship caused by
the risk of persecution and imprisonment, under harsh conditions, if found
guilty of evading military service.
[18]
The
respondent points out that this argument is purely speculative because the
documentation in evidence shows that military service in Albania can be easily
avoided either by paying a sum of C$3,400.00 or by volunteering for various
community services.
[19]
It
was also argued that the facts in this case differ greatly from the ones found
in Perez v. Minister of Citizenship and Immigration, 2008 FC 663, and Glass
v. Minister of Citizenship and Immigration, 2008 FC 881.
The general
conditions in Albania of corruption and crime
[20]
The
applicant relies upon recent documentation to base his arguments on this ground.
[21]
The
respondent answers that no specific evidence was adduced to support the
applicant’s allegations on this issue. He adds that, in any case, the applicant
would not be subject to greater hardship than the rest of the Albanian
citizens.
The
applicant’s degree of integration and establishment in Canada
[22]
The
applicant pleads that the officer failed to consider his personal circumstances
showing his integration and establishment in Canada.
[23]
The
evidence revealed his good employment record in Canada and in
particular his services with Grizzly Concrete Cutting Inc. who consider his
services as essential.
[24]
It
was also established that he has learned both official languages in Canada and has performed
community services in Canada.
Analysis
[25]
The
applicant argues the officer did not discuss the personalized risks and
hardship he would face in Albania based upon the issues discussed before; a
failure which was considered an error in law by Chief Justice Lutfy in Pinter
v. Minister of Citizenship and Immigration, 2005 FC 296, at paragraphs 2
and 5:
. . . there is a difference between the
assessment of risk factors in an application for humanitarian and compassionate
consideration and one for protection from removal.
[. . .]
In my view, it
was an error in law for the immigration officer to have concluded that she was
not required to deal with risk factors in her assessment of the humanitarian
and compassionate application. She should not have closed her mind to risk
factors even though a valid negative pre-removal risk assessment may have been
made. There may well be risk considerations which are relevant to an
application for permanent residence from within Canada which
fall well below the higher threshold of risk to life or cruel and unusual
punishment.
[26]
I
consider that this reasoning applies on all fours in the present case, because
the officer did not assess the risk factors in the H&C application.
Therefore, at least issues 2 and 3 fall under this category and merit a hearing
to assess their validity. The applicant has therefore satisfied this condition.
Irreparable
harm
[27]
The
applicant submits be would suffer irreparable harm if returned to Albania: (a)
arrest and imprisonment as an evader of military service; (b) the hardship of
returning to a criminal and corrupt environment; and (c) he would suffer
serious economic and personal losses even if his H&C application was
granted while he was outside Canada.
[28]
The
respondent argues that these hardships are speculative and are no more severe
than the ones suffered by every removal from Canada (Melo v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 403 (T.D.), at paragraphs
20 and 21). Economic losses do not qualify as irreparable harm (Sidi v.
Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 663
(T.D.)).
[29]
An
analysis of all the evidence in this case shows that if removed, the applicant
would suffer irreparable harm.
Balance of
convenience
[30]
Public
considerations and security are considered in the interpretation of section 48
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and require
the prompt enforcement of removal orders (Dugonitsch v. Canada (Minister of
Citizenship and Immigration), [1992] F.C.J. No. 320 (T.D.)).
[31]
However,
the applicant has been in Canada for six years. He was regularly employed; he
volunteered his services and seems to have integrated well into the Canadian
society. For these reasons, the balance of convenience favours him. Therefore,
the stay must be granted.
ORDER
The stay of
removal of the applicant is hereby granted. The stay will remain in effect
until the judicial disposition of the application for leave and, if granted,
until such time as the application for judicial review is disposed of by the
Court.
“Orville
Frenette”
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