Date: 20040928
Docket: IMM-6880-04
Citation: 2004 FC 1315
BETWEEN:
MOHAMMAD ZEKI MAHJOUB
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
and THE SOLICITOR GENERAL OF CANADA
Respondents
Let the attached certified transcript of my Reasons for Order delivered orally from the Bench at Toronto, Ontario on the 8th day of September, 2004, be filed to comply with section 51 of the Federal Court Act.
"Eleanor R. Dawson"
Judge
Toronto, Ontario
September 28, 2004
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-6880-04
STYLE OF CAUSE: MOHAMMAD ZEKI MAHJOUB
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION AND SOLICITOR GENERAL OF CANADA
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: SEPTEMBER 8, 2004
REASONS FOR ORDER BY: DAWSON J.
DATED: SEPTEMBER 28, 2004
APPEARANCES BY:
Barbara Jackman For the Applicant
John Norris For the Applicant
Donald MacIntosh
Mielka Visnic For the Respondent
SOLICITORS OF RECORD:
Barbara Jackman
Barrister & Solicitor
Toronto, Ontario For the Applicant
John Norris
Ruby & Edwardh
Toronto, Ontario For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada For the Respondent
FEDERAL COURT
Date: 20040928
Docket: IMM-6880-04
BETWEEN:
MOHAMMAD ZEKI MAHJOUB
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION AND THE SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR ORDER
THE COURT: I would like to begin by thanking counsel for their submissions.
Mr. Mahjoub seeks an order granting a stay of the removal order now in force against him which provides for his imminent removal to Egypt, his country of nationality. The stay is sought pending judicial review of the decision of the Minister's delegate that Mr. Mahjoub, a Convention refugee, should be refouled or returned to Egypt.
Mr. Mahjoub also seeks an order sealing part of the record filed herein, consisting of an Opinion tendered to the Court as an expert opinion about what is feared will happen if Mr. Mahjoub is returned to Egypt.
The background facts relevant to this motion are set out in the affidavit of Patricia Vettraino sworn in support of the stay and in the Statement of Facts contained in the Respondent's Memorandum of Argument.
In large part, the material facts are not in dispute. The parties differ in one material respect. Mr. Mahjoub says that the evidence is to the effect that his removal to Egypt would result in torture or subjection to cruel, inhumane or degrading treatment. The Ministers say that the evidence is to the effect that on a balance of probabilities Mr. Mahjoub could face a substantial risk of human rights abuses and ill-treatment should he be returned to Egypt.
Turning to the request that part of the record be sealed, while the Ministers do not object to the sealing of the expert report, in my view as I expressed in court, such an order would go too far. Court proceedings are presumptively open. While for the reasons expressed in the expert report I am satisfied that it is appropriate that the identity of the expert deponent be protected, it is not necessary in my view for the entire report to be sealed. I understand Ms Jackman to have agreed to this.
Accordingly, while Exhibit "E" contained in the Application Record will continue to be sealed, a public version of this document must be filed before the close of the Registry this Friday.
The public version will expurgate page 327 of the Application Record, being the first page of Exhibit "E". It will also expurgate that part of page 328 following the first word "I" up to the end of paragraph 8 on page 328. It will expurgate the first seven words of paragraph 20 on page 330. It will expurgate the penultimate paragraph on page 332 and everything that appears below the phrase "Respectfully submitted by".
Turning now to the request for a stay, the test at law to be applied to the exercise of discretion whether to grant a stay is the tripartite test set out by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General) reported at [1994] 1 S.C.R. 311 and as set out by the Federal Court of Appeal in Toth v. Canada (Minister of Employment and Immigration) [1988], 86 N.R. 302. This test requires that an applicant for a stay demonstrate that he or she has raised a serious issue to be tried in the underlying application for judicial review, that he or she would suffer irreparable harm if no order were granted, and that the balance of convenience favours granting the stay.
With respect to the existence of a serious issue, Mr. Mahjoub argues that there are a number of serious issues in the underlying judicial review application that justify a stay of the removal order. Among these, Mr. Mahjoub submits that the Minister's delegate ignored and misinterpreted the evidence before her and erred in concluding that there were exceptional circumstances to justify Mr. Mahjoub's return to Egypt notwithstanding that he is a Convention refugee who fears persecution in Egypt.
More particularly, one issue raised is that Mr. Mahjoub argues that the Minister's delegate erred in concluding that exceptional circumstances exist which justify his return to torture. This is an issue which is said not yet to have been addressed by the Court. It is agreed by the parties that the Court has granted leave in two other cases where this issue was raised, namely, cases involving Mr. Jaballah and Mr. Almrei.
As to what constitutes at law a serious issue, the jurisprudence simply requires that an applicant show that the application is not frivolous or vexatious. This is a low threshold. The Supreme Court of Canada confirmed in RJR-MacDonald, which I previously cited, that the judge on an application for a stay must make only a preliminary assessment of the merits of the case. In the words of the Supreme Court, as found at page 337 of the report:
"Once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests, even if of the opinion that the plaintiff is unlikely to succeed at trial. A prolonged examination of the merits is generally neither necessary nor desirable."
Given the low threshold for a serious issue, the Ministers have acknowledged that a serious issue exists in this case. In the exercise of my discretion, I am satisfied that this is a fair and accurate admission and that Mr. Mahjoub has established a serious issue for the purpose of the stay application.
Turning to the second requirement, which is that of irreparable harm, at law irreparable harm must be harm which will occur in the interim between now and the time the application for leave and judicial review is adjudicated upon. Irreparable harm is harm which cannot be cured, and an applicant for a stay must establish on a balance of probabilities that he or she faces a serious likelihood of harm. The existence of irreparable harm is fact-specific. The evidence must be credible and the harm non-speculative. The appropriate standard of risk assessment for irreparable harm, however, is not absolute certainty.
In Suresh v. Canada (Minister of Citizenship and Immigration), [1999] 4 F.C. 206, Mr. Justice Robertson of the Federal Court of Appeal approached the assessment of irreparable harm in one of two ways. The first involved assessment of the risk of personal harm if a person is deported or is deported to a particular country. The second involved assessing the effect of a denial of a stay application on a person's right to have the merits of his or her case determined and to reap the benefits associated with a positive ruling.
On the evidence before him, Mr. Justice Robertson concluded that, should Mr. Suresh be deported prior to the hearing of his appeal, the pending appeal would be rendered moot or nugatory. Mr. Justice Robertson wrote at paragraph 17:
"Subject to the balance of convenience factor, it seems to me that appellants such as Mr. Suresh are entitled to have their day in court before being deported. If judges of the Trial Division are prepared to certify questions of general importance as a condition precedent to the Court of Appeal hearing an unrestricted appeal on the merits, then it is not unreasonable to defer the execution of a deportation or removal order in circumstances where it may ultimately be found that persons such as Mr. Suresh have not been dealt with as required by law. Similar reasoning may be applied to cases where leave to seek judicial review has been granted. These cases raise serious Charter issues relating to a complex scheme for removing persons from this country and the possibility that they would be exposed to inhumane treatment on arriving in their former homeland. Until such issues are decided, it is only just that the appellants such as Mr. Suresh be allowed to remain in Canada. While there may be instances in which a person can return to Canada following deportation and a successful appeal, this is not one of those cases."
I accept the submission of the Ministers that as a matter of law the test for irreparable harm cannot in every case be conflated to the single issue of whether a proceeding would be rendered moot or nugatory if the applicant for a stay is removed from Canada before the appeal or judicial review application is heard. However, in the present case at least one serious issue is raised where the Court has previously granted leave. The Ministers concede that, if removed to Egypt, it is unlikely that Mr. Mahjoub would be permitted to return to Canada if his application for judicial review were successful.
While assurances have been provided by Egyptian authorities as to the treatment Mr. Mahjoub would receive in Egypt, counsel for the Ministers fairly conceded that the assurances are problematic. The Minister's delegate, in forming her opinion, found there to be a credible basis for calling into question the extent to which the assurances would be honoured.
In evidence before the Court is the affidavit of the Refugee Co-ordinator of Amnesty International Canada (English-speaking). She deposes at paragraph 6:
"In support of this work Amnesty has reported on the human rights situation in Egypt. As our 2003 report concluded, thousands of suspected supporters of banned Islamist groups, including possible prisoners of conscience, remained in detention without charge or trial. Some have been held for years. Others were serving sentences imposed after grossly unfair trials before military courts. Torture and ill-treatment of detainees continue to be systematic. At least 48 people were sentenced to death and at least 17 were executed."
Also in evidence is the Opinion of an expert who swears at paragraphs 13 through 15:
"Mr. Mahjoub's fear of being tortured and worse if returned to Egypt appears to me well-founded, especially given the experiences reported of other forcible returnees. I am aware that Amnesty International has reported on allegations that people forcibly returned to Egypt in 2001 from countries, including Sweden and Bosnia-Herzegovina, were tortured or ill-treated in incommunicado detention. People forcibly returned in 2002 were held for several weeks in incommunicado detention after their return.
The Egyptian security officials also maintain a blacklist of individuals who, upon being arrested and detained once with or without charge or trial, remain forever members of what may be deemed a suspect class of people who are likely to be rounded up, detained without charge and tortured in the event of any political disturbance.
Mr. Mahjoub, having already been detained and tortured in the past, would very much appear to be a member of that suspect class in the eyes of Egyptian authorities and would be likely, even if not already convicted in absentia, to face some form of ongoing punishment if returned to Egypt."
The Minister's delegate herself concluded -- and I quote from page 10 of her decision:
"Upon reviewing all the evidence, I believe that Mr. Mahjoub will be taken into custody upon his return to Egypt to stand trial for cases in which he is accused of acts leading to threats against Egyptian security."
She goes on to say later on the same page:
"Because Mr. Mahjoub is a member of the A-J and charged with acts of terrorism in Egypt and together with the evidence of human rights abuses in that country, I believe that on a balance of probabilities Mr. Mahjoub could suffer ill-treatment and human rights abuses soon after he is detained."
On this evidence I am satisfied that a denial of the requested stay would render Mr. Mahjoub's application for judicial review nugatory in that he would be deprived of the benefits associated with a positive ruling and has, therefore, in my view, established irreparable harm as required at this stage of the proceeding when what is at issue is the granting of a stay.
The final element of the tripartite test is the balance of convenience. In view of my findings with respect to serious issue and irreparable harm, I am satisfied that, so long as Mr. Mahjoub remains in detention, the third branch of the test articulated in RJR-MacDonald and Toth should be determined in favour of Mr. Mahjoub. I accept that Mr. Mahjoub will suffer greater harm if a stay of the removal order is not granted than the inconvenience to the Ministers should the stay be granted and Mr. Mahjoub remain in detention for a few more months.
Accordingly, the motion for a stay will be granted and the removal order will be stayed pending final disposition of the underlying application for leave and for judicial review on condition. That condition is that, should it appear that Mr. Mahjoub may not remain in detention, the matter may be brought back before the Court on an urgent basis.
I will sign an order to that effect later this afternoon.
I believe that concludes the business to be transacted at this sitting of the Court. Counsel are agreed, I think, with respect to the filing deadlines with respect to written arguments. I will wait to hear if agreement is reached on any other matter.
Is there anything else?
MR. MacINTOSH: No. Thank you, my lady.
MS JACKMAN: Thank you.
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