Date: 20100518
Docket: IMM-2305-10
Citation: 2010 FC 549
Montréal, Quebec, May 18, 2010
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
SONIA ARFAOUI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR ORDER AND ORDER
[1]
Ms.
Arfaoui is a Tunisian national who left her country 12 years ago. After a
lengthy stay in the United States, where she was married and divorced, she
arrived in Canada two years
ago in somewhat unusual circumstances. She was not eligible to seek refugee
protection, but was entitled to and did ask for a pre-removal risk assessment
(PRRA). That assessment was negative and so, pursuant to Section 48 of the Immigration
and Refugee Protection Act, she has been ordered to report for removal to Tunisia later this
month.
[2]
She
has filed an application for leave and for judicial review of the negative
PRRA. That application does not give rise to an administrative stay of her
scheduled removal. Consequently, she has moved in this Court for a stay pending
the outcome of the underlying proceedings before this Court. These are the
reasons why I have granted her motion.
[3]
According
to her very detailed affidavit which was before the PRRA Officer, Ms. Arfoui,
who is now 40 years of age, had left her dysfunctional father and his wife and
was taken under the wing of a religious family. She decided to wear the hijab
like the women in the family did, although she has never professed to be
particularly religious or political.
[4]
When
she was 17, she was warned by the police to remove her hijab. When she refused,
she was brought to the police station and forced to take it off, her long skirt
was cut, she was forced to sign a false confession and called upon to spy on
her benefactors. She ran away. Some four years later, in a series of events
first thought to be unrelated, she was falsely accused of various crimes and
jailed. She then learned that the officer who had removed her hijab had been
behind this. He beat her, burnt her, and raped her over a period of years. She
claims to have spiralled downwards into a life of drugs, sex and rock’n’roll;
for all intents and purposes a slave to the rogue policeman and his cronies.
[5]
She
managed to make it to the U.S. where she married, disastrously it turned
out.
[6]
As
a result of her divorce in 2007, an American change of status was denied. Later
her sister arranged for her to come into contact with a Tunisian man who was
then living in Canada. They were married by proxy at the Tunisian
Embassy in Washington in May 2009.
Thereafter they planned a wedding celebration the following month in Montréal.
[7]
On
arrival at the Canadian border she sought refugee protection. The Canada-U.S.
Safe Third Country Agreement provides for a family class exemption, but the
Border Authorities did not recognize her proxy marriage and she was denied
entry. Later, after staying at a refugee shelter in the United States for three
months, she was granted a temporary resident permit to enter Canada.
[8]
However,
the wedding never took place. She became the victim of domestic violence, and
criminal charges were laid against her “husband”.
[9]
Thus,
the only assessment of whether she would have been determined to be a convention
refugee, or whether she is a person in need of protection, fell to be made in the
PRRA.
[10]
A
claimant who seeks refugee protection is entitled to an oral hearing. An oral
hearing is not automatic in the PRRA process, even for those who had not gone
through the refugee process in the first place. Regulation 167 of the Immigration
and Refugee Protection Regulations provides:
|
167. For the purpose of
determining whether a hearing is required under paragraph 113(b) of
the Act, the factors are the following:
(a) whether there is
evidence that raises a serious issue of the applicant's credibility and is
related to the factors set out in sections 96 and 97 of the Act;
(b) whether the
evidence is central to the decision with respect to the application for
protection; and
(c) whether the
evidence, if accepted, would justify allowing the application for protection.
|
167. Pour
l’application de l’alinéa 113b) de la Loi,
les facteurs ci-après servent à décider si la tenue d’une audience est
requise :
a)
l’existence d’éléments de preuve relatifs aux éléments mentionnés aux
articles 96 et 97 de la Loi qui soulèvent une question importante en ce qui
concerne la crédibilité du demandeur;
b)
l’importance de ces éléments de preuve pour la prise de la décision relative
à la demande de protection;
c)
la question de savoir si ces éléments de preuve, à supposer qu’ils soient
admis, justifieraient que soit accordée la protection.
|
[11]
Ms.
Arfaoui, through counsel, emphasized that she never had access to the Refugee
Protection Division of the Immigration and Refugee Board, and never had a
hearing of any kind in order to evaluate the credibility of her allegations
pertaining to her risk of return or hardship in Tunisia. She
concluded: “[T]he applicant requests a hearing in the event that there are any
concerns regarding the applicant’s credibility.”
THE PRRA DECISION
[12]
The
PRRA Officer noted that Ms. Arfaoui was ineligible to claim refugee status as
Section 101(1)(e) of IRPA provides that: “A claim is ineligible to be referred
to the Refugee Protection Division if… e)
the claimant came directly or indirectly to Canada from a country designated by
the regulations, other than a country of their nationality or their former
habitual residence”. The United States is such a country.
[13]
He
went on to review the wearing of the hijab in the documentary evidence.
Considering that Ms. Arfaoui had never claimed political involvement, he was
not satisfied that there was risk.
[14]
With
respect to rape by members of the police, he merely pointed out that the
government enforced the penal code vigorously and that, in some cases, the
penalty for rape is death.
THE TRI-PARTITE TEST
[15]
The
issue in a matter such as this is whether to maintain the status quo,
i.e. let the PRRA officer’s decision lead to her removal to Tunisia later this
month, or maintain the status quo ante. This distinction is most
important in light of the decision of the Federal Court of Appeal in Solis
Perez v. Canada (Minister of Citizenship and Immigration), 2009 FCA
171, 82 Imm. L.R. (3d) 167, which held that the enforcement of a removal order
renders moot the underlying application for leave and for judicial review of
the negative PRRA.
[16]
A
stay of removal is not to be granted unless the applicant establishes a serious
issue, irreparable harm and that the balance of convenience lies in her favour
(Toth v. Canada (Minister of Employment and
Immigration) (1988), 86 N.R. 302, 6 Imm. L.R. (2d) 123 (F.C.A.), RJR -
MacDonald v. Canada (Attorney General), [1994] 1
S.C.R. 311).
SERIOUS ISSUE
[17]
As
this is not a motion with respect to the refusal of an enforcement officer to
grant an administrative stay, this part of the test as per RJR-MacDonald,
is satisfied as long as the claim is neither frivolous nor vexatious.
[18]
Two
serious issues are readily apparent. The first is whether Ms. Arfaoui should
have been granted an oral hearing. The Minister submits that credibility was
not in issue. He submits that rather there was insufficient evidence adduced in
support of her cause.
[19]
That
may or may not be so if the basis of her allegation was simply that she
intended to wear the hijab on return to Tunisia. However, in
this case the heart of the claim is the fact that she was mistreated by the
police. No analysis worth mentioning of those allegations was carried out as to
explain why it would be unlikely that the treatment that she had previously
received at their hands would not be repeated.
[20]
In
my view, the PRRA officer could not have made the decision he did unless he did
not believe the claimant. That lack of belief is inherent in his analysis (Liban
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1252, 76 Imm. L.R. (3d) 227). It
seems extraordinary that Ms. Arfaoui’s story was not subjected to an oral
examination. As stated in Singh v. Canada (Minister of
Employment and Immigration), [1985] 1 S.C.R. 177 at 213-4:
I should note, however, that even if hearings based on written
submissions are consistent with the principles of fundamental justice for some
purposes, they will not be satisfactory for all purposes. In particular, I am
of the view that where a serious issue of credibility is involved, fundamental
justice requires that credibility be determined on the basis of an oral
hearing. Appellate courts are well aware of the inherent weakness of written
transcripts where questions of credibility are at stake and thus are extremely
loath to review the findings of tribunals which have had the benefit of hearing
the testimony of witnesses in person: see Stein v. The Ship "Kathy
K", [1976] 2 S.C.R. 802, at pp. 806‑08 (per Ritchie J.) I
find it difficult to conceive of a situation in which compliance with
fundamental justice could be achieved by a tribunal making significant findings
of credibility solely on the basis of written submissions.
[21]
Another
serious issue is that if she is removed now, her right, given to her by
Parliament, to seek leave and judicial review of the PRRA decision is lost,
unless two judges decide in their discretion to hear a moot case. It must be
recalled that in Perez, above, leave was granted after the removal order
was enforced, but the judicial review itself was declared moot.
IRREPARABLE HARM
[22]
If
Ms. Arfaoui is to be believed, and she is presumed in her affidavit to be
telling the truth (Maldonado v. Canada (Minister of Employment and
Immigration), [1980] 2 F.C. 302 (C.A.)), she has certainly made out a case
of irreparable harm.
[23]
The
Minister submits that the fact that judicial proceedings may become nugatory
does not necessarily constitute irreparable harm. A leading case in this
context is El Ouardi v. Canada (Solicitor General), 2005 FCA
42, 332 N.R. 76, 48 Imm. L.R. (3d) 157 which was motion for a stay of removal
pending appeal of a decision of the Federal Court to refuse to entertain a stay
of removal motion so as to await the outcome of underlying judicial reviews on
the grounds that the motion was brought at the “last minute”. This is not a
late application.
[24]
In
dismissing the stay in the Court of Appeal, Mr. Justice Rothstein stated:
The
appellant argues that her appeal will be rendered nugatory if the stay is not
granted, resulting in irreparable harm. The difficulty with the argument that
an appeal being rendered nugatory amounts to irreparable harm is that if it is
adopted as a principle, it would apply to virtually all removal cases in which
a stay is sought and would essentially deprive the Court of the discretion to
decide questions of irreparable harm on the facts of each case. In some
cases, the fact that an appeal is rendered nugatory will amount to irreparable
harm. In others, it will not. The material indicates that the appellant's
husband may apply to sponsor her return to Canada. While
removal will cause hardship, it is not clear that rendering the appeal nugatory
will result in irreparable harm.
[My emphasis.]
[25]
That
decision, of course, was rendered before the Court of Appeal’s decision in Perez,
above. Nowhere is it stated in El Ouardi that the underlying application
for leave and for judicial review of a negative PRRA decision becomes moot. In
this case, the irreparable harm test has been met.
BALANCE OF CONVENIENCE
[26]
There
was no argument of substance with respect to the balance of convenience.
Certainly the risk of irreparable harm outweighs the interest of the Minister
in enforcing removal orders as soon as is “reasonably practicable” to use the
words of Section 48 of IRPA.
[27]
The style of cause is forthwith
amended to add the Minister of Public Safety and Emergency Preparedness as
party respondent to this matter.
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