Date: 20060830
Docket: IMM-7818-05
Citation: 2006
FC 1046
Toronto, Ontario,
August 30, 2006
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
CANADIAN COUNCIL FOR REFUGEES,
CANADIAN COUNCIL OF CHURCHES, AMNESTY INTERNATIONAL, and JOHN DOE
Applicants
and
HER
MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is a
Motion brought on behalf of the Applicants for an Order pursuant to section
18.2 of the Federal Court Act restraining the Respondent from denying
John Doe and his wife entry to Canada or, in the alternative, an Order
directing the Respondent to allow John Doe and his wife to enter Canada from
the United States pending determination on Judicial Review as to whether or not
the Safe Third Country Agreement applies to them to bar them from eligibility
to make a refugee claim. The motion is brought within the context of a larger
Application in which the validity of the designation of the United States of America as a “Safe Third Country” and
certain regulatory provisions respecting “Safe Third Country” legislation in Canada is being challenged by the
Applicants.
[2]
At the
core of the Application is a challenge to certain Regulations appearing
in the Immigration and Refugee Protection Regulations S.O.R./2002-227 established
with reference to section 101 and 102 of the Immigration and Refugee
Protection Act S.C. 2001, c. 27 [IRPA]. These Regulations
came into force in December 2004, and provide that a refugee claim is
ineligible to be considered if the claimant came directly or indirectly to Canada from a third country other
than their original country of nationality, which third country has been
designated as “safe” by the new Regulations. The United States of America is presently the only designated
country.
[3]
These Regulations
arise from the Safe Third Country Agreement signed by Canada in December 2002. The Regulatory Impact
Statement published in Part II of the Canada Gazette on 12 October, 2002 [C.
Gaz. 2002 II. Vol. 136] described these Regulations as a necessary step
towards international cooperation in the orderly handling of refugee claims.
Thus, a person who has originally come from a country where they have been
persecuted and who has first gone to the United States of America, cannot
thereafter seek to claim refuge in Canada.
Prior to the establishment of these Regulations, a sojourn in the United States of America, did not preclude a person
from coming to Canada and claiming refugee
protection.
[4]
The
Applicants, other than John Doe, were opposed to the passage of these Regulations
and since their passage, have been seeking a means to challenge their validity
in Court. These Applicants frankly acknowledge that they have spent
considerable time and effort to locate an individual whose circumstances would better
enable them to challenge the validity of the Regulations. Eventually
the Applicant John Doe, whose anonymity was preserved by an earlier Order of
the Court, was selected as a joint Applicant for purposes of challenging the Regulations.
[5]
The
Affidavit of John Doe filed in the Application establishes that he and his wife
are citizens of Columbia where they resided until June 2000 when they entered
the United States
of America
apparently under a tourist visa. Doe unsuccessfully sought employment in the United States. In August 2001, the United States government commenced removal
proceedings against him. In December 2001, Doe made an application for asylum
in the United
States and the
withholding of the removal order. He claimed that when he was in Columbia, he was targeted by a rebel
group (FARC) who made threats against his life apparently by reason of certain
political views that he had openly expressed. He fears that if he is returned
to Colombia he would be persecuted on the
basis of his political beliefs. Asylum was denied by a United States
Immigration Judge in February 2005. The withholding of the removal order was
denied at the same time. Doe now claims that he would like to seek asylum in Canada.
[6]
There is
no evidence that Doe has ever been to Canada
or attempted to enter Canada. He has no relatives here.
There is no evidence that Doe ever had any interest in making a refugee or
asylum claim in Canada prior to the denial of his claim for asylum in the United States. There is no evidence as to
whether Doe has attempted to enter or make a refugee or asylum claim in any
country other than the United
States. There
is no evidence as to efforts if any, made by Doe to exhaust any other remedies,
whether by appeal or otherwise, as may remain available to him in the United States.
[7]
The
purpose of the mandatory injunction now sought by the Applicants has been set
out in an affidavit, not of Doe, but of an “assistant” in the offices of the solicitor
for the Applicants other than Amnesty International. The assistant claims to
have spoken by telephone to Doe and obtained the information. Paragraphs 6 and
7 of that Affidavit states:
6.
John
Doe is unable to pay the legal fees required to appeal the decision of the BIA,
and so is not eligible for an extension of time for voluntary departure. He is
therefore required to depart the United States on or before September 11,
2006. it appears that his spouse will also be required to leave at this time,
as her asylum claim was joined to that of John Doe, though she was not named in
the appeal. If they fail to depart voluntarily, they will be deported to Colombia, where their lives are at
risk and where they continue to face a serious risk of persecution, torture and
ill treatment. Recent documentation of the human rights situation in Colombia is attached as Exhibit A to
my affidavit.
7.
John
Doe and his spouse have no place to go where they can be safe. They have been
ordered to depart from the USA
and have no status in any country other than Colombia. They would have approached a Canadian
port of entry to seek refugee protection in Canada, but have not done so
because they are ineligible to seek Canada’s protection under the Safe Third Country
Agreement. Unless this court orders the Respondent to admit them to Canada for
the purpose of pursuing the herein application for judicial review of the Safe
Third Country Agreement, they will be forced to return to the very country they
fled in fear for their lives, Colombia.
There is no evidence to show
why Doe did not provide an affidavit personally.
Jurisdiction of the Federal
Court to Grant the Mandatory Injunction Requested
[8]
The motion
for a mandatory injunction is brought within the context of an Application
challenging certain Regulations established under IRPA. Neither
that Act nor those Regulations provide for such relief. However,
section 44 of the Federal Court Act, R.S.C. 1985, c.F-7 provides that
the Court may grant other relief including a mandamus or injunction, or
an order for specific performance in all cases in which appears to be just and
convenient to do so.
[9]
The
Supreme Court of Canada in Canadian Human Rights Commission v. Canadian
Liberty Net, [1998], 1 S.C.R. 626 [Canadian Liberty] at paragraphs
35 to 37 of the majority decision held that the Federal Court, having administrative
jurisdiction over certain federal tribunals, has within the intent of section
44 of the Federal Court Act, the power to grant other relief of the kind
contemplated here. In this case the general powers of supervision given by
Parliament to the Federal Court under IRPA and the Regulations,
taken together with section 44 of the Federal Court Act, give to the
Court jurisdiction to grant the type of relief requested here.
Status of the Applicants to seek a
Mandatory Injunction
[10]
The
Applicants, other than John Doe, describe themselves as public interest
litigants having a particular interest in the Regulations at issue. None
of these Applicants are named in any way as persons affected by IRPA or Regulations.
[11]
There is
no dispute that John Doe is a person that could be affected by the Regulations.
As to the other Applicants, no remedy that could be provided by this Court by
way of a mandatory injunction could affect them in any way. The status of
persons such as the Applicants other than Doe has been the subject of several
decisions of the Supreme Court of Canada. A principal decision is that of Canada (Minister of Justice) v.
Borowski,
[1981] 2 S.C.R. 575. The question of status of persons claiming to be public
interest litigants is considered in light of the genuine interest of the
litigant and whether or not there is no other reasonable and effective manner
in which the issue may be brought before the Court. In Canadian Council of
Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R.
236 it was considered that where several persons directly affected had already
filed Court challenges, a public interest litigant should not be given status
to challenge.
[12]
I prefer
to leave the matter open at this time. The issue of status can be argued more
fully and properly at the time that the Application is heard.
Criteria to be met in the Granting of an
Interlocutory Mandatory Injunction
[13]
An
interlocutory injunction is typically sought so as to preserve matters as they
are until the final determination of the issues in a proceeding at a full trial
on the merits. In this way any relief granted following such a trial will not
be meaningless. The injunction is granted usually to preserve the status
quo.
[14]
A
mandatory injunction sought before a full trial on the merits is somewhat
different. It seeks to make one of the parties do something that it ordinarily
would not do. It seeks to change the status quo. Again, the purpose is
the same, to prevent any relief given following a trial from being meaningless.
Here the Applicant argued that unless Doe were to be allowed to come to Canada to make a refugee claim
before being removed from the United States to Colombia, his challenge to the validity of the Regulations
would be meaningless.
[15]
At one
time, the Courts were reluctant to grant mandatory injunctions but, over time,
the Court have been somewhat more willing to do so. Still, some greater level
of caution arises when, particularly at an interlocutory stage, the Court is
asked to order somebody to take a positive action that will change the status
quo [see Robert Sharpe, Injunctions and Specific Performance, Looseleaf
ed., (Aurora, ON: Canada Law Book Inc., 2005), paras. 1500 to 1580].
[16]
The
criteria for consideration by the Court as to whether to grant an interlocutory
injunction, mandatory or not, are those as set out by the Supreme Court of
Canada in RJR MacDonald Ltd. v. Canada (Attorney General), [1994] 1 S.C.R.
311 at pp. 332-333. The criteria are:
1.
A
preliminary assessment of the merits of the case is to be made so as to ensure
that there is a serious issue to be tried.
2.
It must be
determined whether the applicant(s) were to suffer irreparable harm if the
application were refused.
3.
An
assessment must be made as to which of the parties would suffer harm from
granting or refusals of the remedy providing a decision on the merits.
Sometimes this is simply called the balance of convenience.
[17]
In the Canadian
Liberty case, supra at paragraphs 46 and following, the Supreme
Court of Canada cautioned that some modification of these criteria may be
needed in non-commercial cases. In cases such as this the public interest
requires particular consideration. I will be paying attention to the
public interest in considering the balance of convenience.
[18]
Each of
these criteria will be examined in the context of the present motion.
1. Serious Issues:
[19]
The
validity of the “Safe Third Country” Regulations and the designation of
the United States
of America as
one such country is the predominant issue for a hearing on the merits. I do
not propose to examine in depth the arguments raised, nor to assess the
likelihood of success as to the outcome. It must be noted that the validity of
Regulations is to be reviewed on a correctness standard (Sunshine Village
Corp. v. Canada (Parks), [2004] 3 F.C.R. 600 at para
10). However, Regulations have rarely been found to be invalid by
Courts, partly, no doubt, because of the broad grant of delegated power under
which they are made (deGuzman v. Canada (MCI), 2005 FCA 436 at para 25).
[20]
Counsel
for the Applicants argued that the earlier Order of this Court granting leave
to commence a Judicial Review was determinative in that a serious issue was
raised. This is not the case, the standard for granting an Order permitting
judicial review is low. The matter at that point is to be dealt with in a
summary way. The standard on a leave application is whether or not a fairly
arguable case is disclosed (Bains v. Canada (M.E.I.) (1990), 47 Admin. L.R.
317).
[21]
It is
sufficient for the purposes of this motion to say that I am satisfied that the
arguments to be raised at the ultimate hearing of the Application do not appear
to be frivolous and possess sufficient merit to meet the very low threshold
usually applied in considering this criteria.
2. Irreparable Harm:
[22]
The
Applicants argue that John Doe and his wife will be returned to Colombia to face possible torture or
death unless they are given the chance to enter Canada and make a refugee claim here. They
argue that Doe and his wife will, as of early September, be removed from the
United States to Colombia and will lose forever any opportunity to claim
refugee status in Canada. I am not persuaded that this is the case.
[23]
First, it
appears that Doe has not exhausted the remedies that still remain open to him
in the United
States. The
Affidavit of Martin, an expert in United States immigration and refugee law,
states that a number of avenues for relief remain open to Doe in the United
States so that it is still an open question as to whether he and his wife will
be returned to Colombia or if so, whether they will be returned in the near
future.
[24]
The
applicants argue that Doe has no funds so as to retain counsel to engage in the
pursuit of these further avenues. I am not persuaded that this is the case.
The evidence as to lack of funds is hearsay, only the assistant makes this
statement, Doe does not. Doe only says that he has not worked for some time.
The evidence shows that Doe had counsel in the United States proceedings to date. The evidence also
shows that there is a functional pro bono system available in the United States to persons in Doe’s
circumstances. I would have expected clearer evidence from Doe if he could not
avail himself of these further remedies whether for financial reasons or
otherwise. The onus is upon Doe to prove the likelihood of irreparable harm.
He had an opportunity to respond to these issues and did not. This important
aspect of his case has simply not been addressed properly.
[25]
Second,
the Affidavit of Manni indicates that there are a number of countries including
Argentina, Brazil, Chile, Costa Rica, Ecuador, Panama, Mexico, Spain and Venezuela that do not require a visa from persons
such as Doe to enter. The Applicants argue that simply because Doe could enter
such countries without a visa does not mean that he could sojourn or remain
there. The Respondent argues that the evidence shows that these countries are
signatories to the Convention Relating to the Status of Refugees, 28
July 1951, U.N.T.S. 189 [the Convention], just as Canada is, thus they
must afford a person an opportunity to make a refugee claim. The Applicants
say that there is no evidence that, having signed the Convention, any of these
countries have implemented its terms into their laws or if there are exceptions
that would prevent or allow Doe and his wife from making a refugee claim. Again,
the Respondent has raised the issue, albeit imperfectly, it would have been
expected that the applicant’s would have lead some evidence to address it.
[26]
Third, the
evidence of Doe himself as to irreparable harm is not robust. In his affidavit
filed in the main application he says, paragraph 25, “I would like to seek
asylum in Canada”, in paragraph 26, he says,
“I am deeply concerned about what might happen to my parents etc. if my
whereabouts became know to FARC….If the Court declines to issue an order
protecting my identity….I will be compelled to withdraw from this case…” This
statement in paragraph 26 suggests that Doe does not fear irreparable harm if
he is not permitted to enter Canada for purposes of making a
claim. What is does indicate is that he is willing to drop his case entirely
if his identity is revealed. Presumably anonymity is more important to Doe
than the making of a refugee claim in Canada.
[27]
The
Prothonotary’s Order permitted anonymity states that the fear that Doe has as a
consequence of any revelation of his true identity is uncontradicted on the
evidence and is not speculative, but rather is substantial and continuing.
That finding is directed to the issue of anonymity, not to the issue of
irreparable harm if a mandatory injunction were not to be granted.
[28]
The only
evidence of irreparable harm comes from an affidavit of an “assistant” in the
office of the solicitor for Doe. The relevant part of that affidavit is
paragraph 7 which has previously been set out in full in these Reasons. That
paragraph says that Doe and his spouse “…have no place to go” and that “…they
will be forced to return to the very country they fled in fear for their lives,
Colombia”.
[29]
This
affidavit is very unsatisfactory by way of evidence. First, the “assistant”
gives no basis for statements such as that Doe has nowhere to go and will be
forced to return to Colombia. The assistant does not
purport to be an expert in the relevant legal areas.
[30]
Second,
while the Court can, particularly in interlocutory proceedings, accept hearsay
evidence, there is no stated reason why Doe could not provide an affidavit as
to irreparable harm. Why do we need his solicitor’s assistant? Rule 82 of
this Court says that a solicitor should not swear an affidavit filed on a
motion and also appear to argue that motion. This has been pointed out in an
immigration setting in Ly v. Canada (M.C.I.), 2003 F.C. 1184. The same has been held
to apply to assistants and others in the solicitor’s office (Hyundai v.
Cross-Canada, 2005 FC 1254). Solicitor affidavits directed to
non-controversial matters are often accepted by this Court. However, an
affidavit from an assistant in the office of the solicitor arguing the case, directed
to critical or controversial matters, if not rejected outright, should be given
much less weight than if it came directly from the person who is a litigant.
No meaningful cross-examination could be conducted upon the “assistant”. No
reason was given as to why Doe could not furnish evidence directly.
[31]
I find
that the Applicants, who bear the onus, have failed to establish that
irreparable harm would be the result to Doe should the relief sought not be
granted.
3. Balance of Convenience
[32]
Much has
been said as to the balance of convenience in this matter. The Supreme Court
of Canada in Manitoba A.G. v. Metropolitan Stores (MTS) Ltd., [1987] 1
S.C.R. 110 at paragraphs 38 and 39 cautions that where the constitutional
validity of a legislative provision is challenged the Court must take the
public interest into consideration. The court must consider the far-reaching,
albeit temporal, practical consequences of its Order. At paragraphs, 54 to 56
of that decision the Supreme Court directs that a Court, in considering the
balance of convenience, rise above the interests of private litigants. Will
the grant of the order requested frustrate the pursuit of the common good?
[33]
In Harper
v. Canada (Attorney General), [2000] 2 S.C.R. 764 the Supreme Court of
Canada, at paragraph 9 said that the Court will not lightly order that laws
that Parliament has duly enacted for the public good are inoperative in advance
of a complete hearing as to their validity. In the present case, to order a
mandatory injunction would be to render the Regulations essentially
inoperative against Doe and quite possibly many others.
[34]
The
Respondent argues that the “Third Safe Country” Agreement is part of the
orderly scheme in the administration of refugee claims and protected claims. He
further argued that to allow the relief claimed on the motion would be
effectively to suspend the effect of the Regulations not only as far as
Doe is concerned, but also in respect of a large number of other individuals
whose situations would be essentially undistinguishable from that of Doe.
[35]
The
Applicants argue that Doe’s claim is highly fact specific and that only few
persons would be sufficiently emboldened by Doe’s success on this motion so as
to risk exposure to authorities in the United States, or elsewhere, for the
purpose of making a claim in Canada. I am not persuaded that
this narrow view is correct.
[36]
I find
that the balance of convenience favours the Respondent. The Regulations
have been enacted in the public interest. Private interests of those such as
Doe must yield to the public interest unless and until those Regulations have
been held to be invalid.
In Conclusion
[37]
I have
found that, on a low threshold criteria, the Applicants have established a prima
facie case. However, the Applicants have failed to establish irreparable
harm would result should the requested relief not be granted. The balance of
convenience favours the Respondent. Accordingly, the application will be
dismissed.
[38]
Since this
motion was brought within the context of an application ostensibly made under IRPA,
there is a procedural as well as a substantive question as to whether a
question has to be certified before any appeal from this Order can be taken.
The parties have asked that I provide an opportunity for them to make
submissions on this issue. They will have five days to file written
submissions in this regard.
[39]
The
parties have agreed that costs shall be in the cause and it will be so ordered.
ORDER
THIS COURT ORDERS that
1.
The motion
is dismissed;
2.
The
parties shall, within five (5) business days from the date of this Order file
written submissions as to whether certification of a question is required and
if so, what that question might be; and
3.
Costs
shall be in the cause.
“Roger T. Hughes”
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