Docket:
IMM-6177-13
Citation: 2014 FC 142
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, February 12,
2014
PRESENT:
The Honourable Mr. Justice Roy
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BETWEEN:
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ELHADJ MEKHACHEF
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
The applicant appeared before this Court seeking
a stay of execution of the deportation order scheduled for February 18, 2014,
to his country of citizenship, Algeria.
[2]
For 27 years, Mr. Mekhachef was a member of the
Algerian police, which he joined in 1985. He was part of the antiterrorist squad
starting in 1988.
[3]
He and his family (his wife and two children)
left Algeria on April 3, 2012, after, according to the applicant, they were
threatened. An refugee claim was filed on April 19, 2012, pursuant to the Immigration
and Refugee Protection Act, SC 2001, c 27 (the Act).
[4]
However, the Immigration Division (ID) found
that the applicant was inadmissible on September 13, 2013. Essentially, the ID concluded
that membership in the antiterrorist squad for 25 was sufficient, pursuant to
the test developed in Ezokola v Canada (Citizenship and Immigration),
2013 CSC 40. The ID found that the applicant had voluntarily made a significant
and knowing contribution to the crimes committed by the Algerian police.
[5]
There does not seem to be evidence of direct
participation in exactions, but there were arrests made by the applicant
following which the suspects were handed over to what the ID calls [translation] "torture
specialists" (para 34 of the ID decision). The ID therefore found that the
applicant was inadmissible under paragraph 35(1)(a) of the Act which
states
35. (1) A permanent resident or a foreign national is inadmissible on
grounds of violating human or international rights for
(a) committing
an act
outside Canada that constitutes an offence referred to in sections 4 to 7 of
the Crimes Against Humanity and War Crimes Act;
[6]
As a result, the applicant's refugee claim was
rendered ineligible by application of the Act. Paragraph 101(1)(f) of
the Act applies and, pursuant to section 104 of the Act, notice was given to
the applicant on September 16, 2013. Moreover, a deportation order was issued
pursuant to section 229 of the Immigration and Refugee Protection Regulations,
SOR/2002-2007 (the Regulations) by September 13, 2013.
[7]
On January 7, 2014, the results of the
pre-removal risk assessment (PRRA) were given. The senior immigration officer's
general finding was summarized in a concluding paragraph, as follows:
[translation]
Having read the
general documentation on Algeria, I find it undeniable that many problems
including restrictions on the freedom of assembly and association, the lack of
independence of the judicial system, impunity and corruption persist in the
country. However, these are generalized problems. Without information
addressing the applicant's individualized risk in the country, I feel that he
would not face a personalized risk at the hands of terrorists should he return
to his country of birth.
This conclusion
was reached despite the applicant's testimony recounting the many threats he
allegedly received. It seems that the senior officer would have liked some evidence
from the applicant's close family that had stayed in Algeria, but we do not know
why the evidence offered was not sufficient [translation]
"to find that the applicant faces a personalized risk from terrorist
groups should he return to Algeria".
[8]
Moreover, the senior officer did not accept that
the applicant had fears resulting from his defection from the police force for
essentially the same reason, insufficient evidence that was considered a lack
of corroboration in this case. The following is found at page 10 of the
decision:
[translation]
Moreover, because
there is a lack of corroboration that the applicant is being sought and
targeted today by the Algerian authorities, the evidence does not support the
finding that, on a balance of probabilities, the applicant is a person of
interest to the authorities in his country of birth.
[9]
During the hearing of this application for stay,
I learned that the PRRA was also the subject of an application for judicial
review. However, contrary to the application for judicial review of the ID
decision of September 13, this Court has not yet rendered a decision on the
application for judicial review of the PRRA decision.
[10]
The application for stay is therefore related to
the removal order resulting from the inadmissibility ruling of September 13, 2013.
This inadmissibility is now the subject of a judicial review following the
January 14, 2014, order by this Court. Unlike the application for judicial
review of Refugee Protection Division decision rejecting a refugee claim,
which, under section 231 of the Regulations, results in a stay of the removal
order, even after it is granted, an application for judicial review of an
inadmissibility decision does not result in an automatic stay. Thus, the
application in this case is pursuant to section 18.2 of the Federal Courts
Act.
[11]
The respondent does not object to this approach.
The case therefore proceeded on this basis.
[12]
In such cases, the test to apply is well known.
The applicant must satisfy the Court that the following three elements have
been demonstrated:
(i)
is there a serious issue raised in the
underlying judicial review;
(ii)
would the applicant suffer irreparable harm if
the stay is not granted;
(iii)
the balance of convenience favours the applicant.
(RJR-MacDonald
Inc. v Canada (Attorney General), [1994] 1 S.C.R. 311; Toth v Canada
(Minister of Employment and Immigration) (1988), 86 NR 302 (FCA).
[13]
The respondent conceded from the start that a
serious issue is raised in this case because the application for judicial
review was allowed. This is a sensible concession.
[14]
Where the parties disagree is with regard to the
criterion of irreparable harm. The respondent wishes to rely on the PRRA
decision. He appears to allege that the risk assessment was completed and a
return to Algeria is possible. He argues that the mere existence of a serious
issue does not result in irreparable harm; he stated that there must be clear
and non-speculative evidence that is not based on conjecture. The harm is not
that which results from the hardships the deportation would inevitably create.
[15]
The respondent's arguments that the PRRA
application and the decision rendered January 7, 2014, could have an impact on
the issue to be decided seems faulty to me. Not only did the respondent state that
he accepted the case would proceed solely on the basis of the judicial review
of the inadmissibility decision, but the PRRA decision itself is also being
challenged. Additionally, the scope of the PRRA application is reduced when the
person is inadmissible on the grounds of violating human rights (subsection
112(3) and paragraph 113(d) of the Act).
[16]
In my opinion, the issue of irreparable harm
cannot be determined by referring to an impugned decision by another group from
the same administration. This could be considered "boot strapping".
Rather, an independent review is required.
[17]
If I understand the applicant's position, he is
claiming that the hearing of his application for judicial review on April 14,
2014, could result in his no longer being inadmissible. A judge from this Court
found that the issue should be debated. If the applicant is successful, he
could then present his refugee claim and show the validity of his fears about
his physical integrity and that of his family.
[18]
After 27 years as a police officer, the
applicant and his family decided to leave Algeria. This is not trivial. The
applicant states that he fears for his integrity and that of his family and
this is why he left. However, his refugee claim was never heard, let alone
decided, because he was found to be inadmissible. If not for this decision, the
applicant's refugee claim would have proceeded with that of his family. But in
this case, the danger of persecution or risk to his integrity were not subject
to adjudication by the Refugee Protection Division. It is an unusual case in
which an application for stay is made due to a refusal to grant an
administrative stay after an applicant has made various applications, including
a refugee claim, which were all refused.
[19]
As indicated above, the application for judicial
review of a decision by the Refugee Protection Division includes an automatic
stay of the removal order. Under the Act, it appears that adjudication of an
issue as important as a refugee claim must be completed before the removal
order is carried out. Indeed, if there were a positive decision confirming
persecution or risk to integrity, it might be too late for the person to
benefit from the judgment if he has already been deported.
[20]
As I have attempted to show, the PRRA decision
cannot be a substitute for the decision not yet been rendered on the refugee
claim, duly presented. And yet, in this case the Regulations also provide for a
stay of the automatic removal. I feel that this stay seems to follow the same
logic, to allow the applicant to benefit from a favourable judgment.
[21]
In the present case, the applicant would suffer
irreparable harm if the fears that led him to come to Canada were to become
reality upon his return to Algeria.
[22]
The situation would be completely different if
the application for leave and judicial review had been refused. The effect of
the Act would have had full impact. Because the applicant is inadmissible
pursuant to paragraph 35(1)(a) of the Act, he is no longer entitled to
make a refugee claim. But when the finding on the inadmissibility is
challenged, resulting in a case before this Court, the situation changes a
great deal. There is a certain symmetry between this situation and that of an
application for review of a decision by the Refugee Protection Division that
leads to a similar result, namely the deportation order is stayed to allow the
case to be heard so that the applicant can benefit from a favourable judgment.
[23]
In my opinion, it is not certain that the
applicant would be persecuted or be at risk if he were to return. In fact, this
is the type of decision the Refugee Protection Division renders, with its particular
expertise. However, certainty is not required for a stay or, specifically, the
assessment of irreparable harm.
[24]
In the present circumstances, which I admit are
quite particular, I have no doubt that the harm in question would be
irreparable given the nature of the risk. More difficult to assess is whether
this irreparable harm would be a mere possibility or rather should be
considered a serious risk for the applicant's life or security or an obvious
threat of ill treatment (Ellero v Canada (Minister of Public Safety and
Emergency Preparedness), 2008 FC 1364). The applicant's past
employment, his desertion and the threats he allegedly received based on his
past employment lead me to believe that, at this stage, we have gone beyond
mere conjecture and there is a substantial likelihood of jeopardy.
[25]
It is therefore not necessary to rely on Figurado
v Canada (Solicitor General) 2005 FC 347, cited by the applicant in support
of his suggestion that irreparable harm can be established based on the fact an
applicant would not benefit from an application for judicial review. I prefer
to address the issue based on the substantial likelihood of jeopardy,
particularly because this jeopardy was not reviewed as thoroughly as required.
I will add that the existence of an automatic stay of removal in cases of
applications for judicial review of a decision by the Refugee Protection
Division suggests that the substantial likelihood of jeopardy is not so
far-fetched in these matters.
[26]
Lastly, with regard to the balance of convenience,
the importance of the public interest to have inadmissible persons leave Canada
(Canada (Minister of Employment and Immigration) v Chiarelli, [1992] 1 SCR
711 should not be minimized. In this case, the application for judicial review
shall be heard in only two months (April 14, 2014). Additionally, the issue of
the risk the applicant would face is such that, once considered, the balance of
convenience favours the applicant. It is not so urgent to deport the applicant
to Algeria that he cannot wait in Canada for the result of the judicial review
of his inadmissibility. It is not a matter of years, simply a few weeks.
[27]
As a result, the application for stay is
granted. The stay will be valid until a decision on the inadmissibility ruling
of September 13, 2013, with a deportation removal order, has been rendered by
this Court.
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