Date: 20090506
Docket: IMM-2116-09
Citation: 2009 FC 462
Ottawa, Ontario, May 6, 2009
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
LEMLEN
YIREFU BEGASHAW
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Overview
[1]
The public interest is to be taken into
consideration in determining the balance of convenience and is weighed together
with the interests of private litigants (Manitoba (A.G.) v.
Metropolitan Stores Ltd., [1987] 1 S.C.R. 110).
[2]
There is undoubtedly a public interest in the enforcement of the
provisions of the Immigration and Refugee Protection Act, S.C. 2001, c.
27 (IRPA), and the subordinate regulations and policies. The inherent integrity
of the immigration and refugee system and Canadian society as a whole depends
on it. This, also, necessitates ensuring that individuals facing serious
consequences on removal from Canada have an effective access to a remedy before
the Courts. The purpose of such a justifiable remedy should neither put in
jeopardy the immigration and refugee system nor Canadian society as a whole (Suresh v. Canada (Minister of Citizenship and
Immigration), [1999] 4 F.C. 206, 90 A.C.W.S. (3d) 443).
II.
Introduction
[3]
This is a case unto itself (cas d’espèce) due to the fact
situation that unfolds. In the statutory declaration submitted with the Pre-Removal
Risk Assessment (PRRA) application, the Applicant, Ms. Lemlem Begashaw, recounts
in detail how she underwent three months of imprisonment, torture and rapes. She
corroborated her account with evidence from a mental health worker to whom she
first disclosed her history, and psychiatric evidence about how these traumatic
memories were repressed due to her mental illness. The psychiatrist, Dr.
Hung-Tat Lo, concludes: “I am of the opinion that the unusual omission of
Ms. Begashaw’s imprisonment and rape in her previous testimonies is the
consequence of a major psychiatric disorder, namely a schizoaffective disorder,
rather than an issue of credibility” (Emphasis added). (Motion Record
(MR): Statutory declaration of
Applicant at p. 56; letter of Khadija Abdi filed in PRRA application at p. 71;
Psychiatric report of Dr. Lo at p. 64).
[4]
Dr. Lo’s opinion
comes at the conclusion of his five-page, detailed report that was based on a
thorough review of her medical and immigration history, two assessment
interviews and a telephone conversation with her. In the report, he describes
her history of trauma and psychotic illness and, late-onset, post-traumatic
stress disorder (recognizing that repression of memories causes delay in
recounting and reliving them). It describes her treatment.
[5]
This is particularly important in this case because the expert
opinion that Ms. Begashaw faces a peril to her life is central to her ss.
108(4) of the IRPA compelling reasons submission. The ss. 108(4) submission was
never properly dealt with by the Officer.
[6]
In summary, it must be
recognized that it is not the mental illness that is
considered the significant factor in this case but rather the persecutory
treatment that Ms. Begashaw received that would have caused the mental
illness (not the mental illness in and of itself).
III. Judicial
Procedure
[7]
This is a motion for a stay of removal
scheduled to take place on May 7, 2009. The underlying application is an
application for leave and for judicial review of the Applicant’s negative PRRA
decision, dated March 23, 2009.
IV. Background
[8]
In summary, Ms. Begashaw claims the following specific facts as
relied upon by the Respondent as a background to the case.
[9]
Ms. Begashaw is a citizen of Ethiopia from the Amhara ethnic
group. She has schizoaffective disorder, which combines symptoms of
schizophrenia and depression. She has suffered from this illness since at least
1997, though it was not diagnosed until she was hospitalized in Toronto after
her refugee hearing in late 2004 (MR: Psychiatric
report of Dr. Lo at p. 64; Affidavit of Applicant; Ex. E; Letter from Dr. Martin
Chisvin and information on schizoaffective disorder at p. 187).
[10]
Ms. Begashaw’s family was politically active with the All-Amhara
People’s Organization (AAPO) in the 1990s. Her mother and one brother were
imprisoned and her brother died as a result of political persecution, while
another brother remains in jail in Ethiopia to this day. Ms. Begashaw
herself was not politically active when she lived in Ethiopia. She had won the
U.S. green card lottery and immigrated to the U.S., in 1995; she returned home
in 1998 for about two years; by then she was suffering from her undiagnosed
mental illness and her family tried to shield her from their activities.
[11]
Ms. Begashaw returned to the U.S., in 2000, but was placed into
removal proceedings due to her extended absence from the country. She was found
to have abandoned her permanent resident status and was ordered deported, in
late 2003. She came to Canada and made a refugee claim, in January 2004.
[12]
Her mental health was very poor at the time. She was living in a shelter
where she spent her time in a dark room, did not take care of her hygiene, and
was hardly functioning. She did not understand the Immigration and Refugee
Board (IRB) proceedings well and was in no position to gather evidence. When
the IRB assessed her claim and rejected it for lack of credibility, she was
suffering from an undiagnosed and untreated major psychiatric illness. Her
condition was only properly identified when she had a psychotic break shortly
after her hearing, and was hospitalized, diagnosed and treated with proper medication
for the first time (MR: Letter from Dr. Chisvin in PRRA submissions at p. 69; Report
of Dr. Lo at p. 64).
[13]
In late 2005 or early 2006, Ms. Begashaw was watching television when
she had a vivid memory of being in prison in Ethiopia and being raped there. Slowly
since then, memories returned to her of being arrested in about February 2000
in Ethiopia due to her family’s political activities. She remembered that she
had spent about three months, during which time she suffered repeated sexual
violence and other forms of torture. She had been unable to relate or even
remember this experience of persecution at the time of her IRB hearing and for
at least a year afterwards.
[14]
Her own experience of persecution was presented as new evidence in her
PRRA, which was filed in September 2006. She filed psychiatric evidence from
her treating psychiatrist and Dr. Lo, a specialist in cross-cultural
psychiatry and services to immigrants and refugees and a member of the Medical
Network of the Canadian Centre for Victims of Torture. Dr. Lo’s psychiatric
report explained that Ms. Begashaw was suffering from an untreated major
psychiatric disorder at the time of her imprisonment and for years afterward; that
this psychosis interfered with her memory and delayed the onset of
Post-Traumatic Stress Disorder (PTSD). He concluded that Ms. Begashaw was
unable to remember her imprisonment and the treatment she experienced there until
her psychosis had been properly treated (MR: PRRA submissions and evidence at
p. 45; Report of Dr. Lo at p. 64; Letter from Dr. Chisvin in PRRA evidence at
p. 69).
[15]
She also filed a letter from her mental health worker, Khadija Abdi, to
whom she had first disclosed her rapes in prison. Ms. Abdi describes Ms.
Begashaw’s condition at the time of her refugee hearing and her obvious fear
and distrust of others, particularly of men (Letter from Khadija Abdi at p. 71).
[16]
Ms. Begashaw also filed new evidence of her own involvement in political
activity in Canada supporting the opposition to the Ethiopian government (MR: Letter from All Ethiopia Unity Cultural
and Relief Organization in Toronto, PRRA evidence at p. 74).
[17]
Ms. Begashaw’s case had to be assessed on all the facts, as the refugee
hearing had essentially taken place at a time when Ms. Begashaw could not understand
the nature of the proceedings. She had experienced past persecution and had a
plausible and documented explanation for not having disclosed this earlier. It
was argued that conditions remained dangerous for those suspected of supporting
the opposition or related to opposition activists.
[18]
Her PRRA was refused in March 2009. Ms. Begashaw is scheduled for
removal to the U.S. on May 7, 2009. Since she has no status in the U.S. and was
ordered deported from there in 2003, she will be removed from the U.S. to Ethiopia.
V. Issue
[19]
The Supreme Court of Canada has established a tri-partite test
for determining whether interlocutory injunctions should be granted pending a
determination of a case on its merits, namely, (i) whether there is a serious
question to be tried; (ii) whether the litigant who seeks the interlocutory
injunction would, unless the injunction is granted, suffer irreparable harm; and
(iii) the balance of convenience, in terms of which of the two parties will
suffer the greater harm from the granting or refusal of an interlocutory
injunction pending a decision on the merits (Toth v. Canada (Minister of Employment and
Immigration)
(1988), 86 N.R. 302, 11 A.C.W.S. (3d) 440 (F.C.A.); R.J.R.-MacDonald
Inc. v. Canada (Attorney General), [1994] 1
S.C.R. 311).
[20]
The requirements of the tri-partite test are conjunctive. The
Applicant must satisfy all three branches of the test before this Court can
grant a stay of proceedings.
VI. Analysis
[21]
An injunctive remedy constitutes an awareness by the Courts that there
is often value in maintaining the status quo while issues are argued before the
Courts, the outcome of which are not at all certain, at preliminary stage of
the proceedings. The role of a Court at an interlocutory and preliminary stage
of the proceeding has been clarified by the Supreme Court of Canada:
[41] The limited role of a court at the interlocutory stage was well
described by Lord Diplock in the American Cyanamid case, supra,
at p. 510:
It is no part of the court's function at this stage of the litigation to
try to resolve conflicts of evidence on affidavit as to facts on which the
claims of either party may ultimately depend nor to decide difficult questions
of law which call for detailed argument and mature considerations. These are
matters to be dealt with at the trial.
…
[43] First, the extent and exact meaning of the rights guaranteed by
the Charter are often far from clear and the interlocutory procedure
rarely enables a motion judge to ascertain these crucial questions.
Constitutional adjudication is particularly unsuited to the expeditious and
informal proceedings of a weekly court where there are little or no pleadings
and submissions in writing, and where the Attorney General of Canada or of the
Province may not yet have been notified as is usually required by law…
(Manitoba, above).
A. Serious Issue
[22]
The first branch of the test for injunctive relief is:
[32] The first test is a preliminary and
tentative assessment of the merits of the case, but there is more than one way
to describe this first test. The traditional way consists in asking whether the
litigant who seeks the interlocutory injunction can make out a prima facie
case. … The House of Lords
has somewhat relaxed this first test in American Cyanamid Co. v. Ethicon
Ltd. … where it held
that all that was necessary to meet this test was to satisfy the Court that
there was a serious question to be tried as opposed to a frivolous or vexatious
claim.
…
[34] …
In my view, however, the American
Cyanamid "serious question" formulation is sufficient in a
constitutional case where, as indicated below in these reasons, the public
interest is taken into consideration in the balance of convenience…
(Metropolitan Stores Ltd.,
above; R.J.R.-MacDonald Inc., above; Toth, above).
The Officer was required to conduct a
hearing
[23]
PRRA Officers are to examine whether to conduct oral hearings under
certain circumstances specified under s. 113 of the IRPA and section 167 of the
Regulations. For ease of reference, subsection 113(b) of the IRPA states:
|
113. Consideration
of an application for protection shall be as follows:
…
(b) a
hearing may be held if the Minister, on the basis of prescribed factors, is
of the opinion that a hearing is required;
|
113. Il est disposé de la demande comme il
suit :
...
b) une audience peut être tenue si
le ministre l’estime requis compte tenu des facteurs réglementaires;
|
[24]
Section 167 of the Regulations states:
|
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.
|
[25]
Thus, where there is an issue as to the credibility of the evidence
related to the application, where such evidence is central to the PRRA decision
and where the acceptance of such evidence would justify allowing the PRRA
application, an oral hearing may be required (Tekie v. Canada (Minister
of Citizenship and Immigration), 2005 FC 27, 136 A.C.W.S. (3d) 884).
[26]
In her PRRA, Ms. Begashaw presented a personal account of imprisonment,
torture and rape that was entirely new at this stage. The new evidence
addresses the concerns of the Refugee Protection Division (RPD) that Ms.
Begashaw had not experienced past persecution, and provides psychological
explanations for the credibility and subjective fear. In light of the
documentary evidence of repression of AAPO activists, the RPD may have decided
the case differently had these concerns been addressed at the time of the
refugee hearing.
[27]
The credibility of Ms. Begashaw’s new account was central to the PRRA
and, if accepted, could have been sufficient to ground a positive decision.
[28]
First, at the outset of the decision, the Officer quotes some of the
RPD’s credibility and subjective fear findings. Despite the new evidence which
is put forward, the Officer states that Ms. Begashaw is making the same claim
as that rejected by the RPD and that she has not addressed the RPD’s concerns:
Regarding the applicant’s claim
of risk due to her family’s membership in the AAPO, her credibility was
thoroughly impugned by the RPD; and for the purposes of this PRRA application,
she has simply restated her case. She has not addressed this issue. (Decision
at p. 5).
[29]
The Officer fails to reassess the RPD’s credibility concerns in light of
the new evidence. (Selliah
v. Canada (Minister of Citizenship and Immigration), 2004
FC 872, 256 F.T.R. 53, aff'd on other grounds 2005 FCA 160,
139 A.C.W.S. (3d) 348; Latifi v. Canada (Minister of Citizenship and
Immigration), 2006 FC 1388, 153 A.C.W.S. (3d) 420 at paras.
50-54, 59-60).
[30]
Second, in the statutory declaration submitted with the PRRA
application, Ms. Begashaw recounts in detail how she underwent three months of
imprisonment, torture and rapes. She corroborated her account with evidence
from a mental health worker to whom she first disclosed her history, and
psychiatric evidence about how these traumatic memories were repressed due to
her mental illness. The psychiatrist, Dr. Lo concludes: “I am of the opinion
that the unusual omission of Ms. Begashaw’s imprisonment and rape in her
previous testimonies is the consequence of a major psychiatric disorder, namely
a schizoaffective disorder, rather than an issue of credibility” (Emphasis
added). (MR: Statutory declaration
of Applicant at p. 56; Letter of Khadija Abdi filed in PRRA application at p.
71; Psychiatric report of Dr. Lo at p. 64).
[31]
The Officer does not believe the new evidence. She explicitly
distinguishes her acceptance of the psychiatric diagnosis from her rejection of
the account that Ms. Begashaw gave:
While
I assign appropriate probative value to the psychiatrists’ reports, I note that
the source of the reports is the applicant. The psychiatrists’ [sic] have
recounted the applicant’s information as provided to them. I find the
psychiatrists [sic] reports rest on hearsay as they were not witnesses to the
events; they have relied on the applicant’s observations to reach their
diagnosis. I therefore accept the diagnosis as offered by Drs. Chisvin and
Lo; however give little weight for the explanation of its cause. Objective
evidence supports that the applicant suffers from mental health
issues….However, she has provided insufficient objective evidence to support
that she was imprisoned, tortured and raped while in Ethiopia….
It
is determined that the applicant has provided insufficient objective evidence
to establish that she was jailed, tortured and
raped when she returned to Ethiopia in 2000. The applicant returned to her family’s Ethiopian home in
1998 and states she was arrested in 2000; submissions are silent as to why the
Ethiopian authorities waited nearly two years to arrest her… (Emphasis added).
(Decision at p. 10).
[32]
At the end of the decision, the Officer states:
It
has been determined that the applicant has provided insufficient objective
evidence to support that she has experienced past persecution in Ethiopia…
(Decision
at p. 11).
[33]
This Court has recognized that it must “look
beyond the express wording” of the Officer to determine whether her decision is
based on sufficiency of evidence, as her words suggest, or credibility. In
this case, the conclusions are credibility findings. Either the Officer
believes that Ms. Begashaw’s recovered memories are of some non-persecutory
traumatic events in her past; or her view is that Ms. Begashaw has not actually
recovered any memories at all, but claims to have done so to convince Dr. Lo.
Either way, the Officer simply does not believe that Ms. Begashaw was
imprisoned, tortured and raped (Ferguson v. Canada
(Minister of Citizenship and Immigration), 2008 FC 1067, 170 A.C.W.S. (3d) 397 at para. 16).
[34]
Third, the Officer makes a veiled credibility finding with regard
to Ms. Begashaw’s political activity in Canada through the All Ethiopia Unity
Cultural and Relief Organization (AEUCRO) in Toronto (which is linked to the
AAPO, though both organizations have gone through various name changes). The
Officer discounts her letter from the AEUCRO as it is not corroborated by photographs
or news accounts (Decision at p. 5; MR: RIR ETH101849.E at p. 256; Letter from
All Ethiopia Unity Cultural and Relief Organization in Toronto, PRRA evidence
at p. 74).
[35]
In the result, the Officer either does not believe Ms. Begashaw’s
involvement in the organization or does not believe that the letter proves her
involvement. The IRB had specifically stated in its decision that a letter from
the All Amhara People’s Cultural and Relief Organization (the predecessor to
the All Ethiopia Unity Cultural and Relief Organization) is considered credible
documentation of a person’s involvement. Ms. Begashaw could not have predicted
that she required more than this letter to prove her involvement.
[36]
This issue also required the consideration of an interview, as it
is new to the claim and could have affected the decision. Country condition
evidence indicates that opposition supporters are targeted by the government.
[37]
In Liban v. Canada (Minister of Citizenship and
Immigration), 2008 FC 1252, this Court discussed a PRRA Officer’s
use of the phrase “insufficient objective evidence”:
[14] In my view, when the officer stated that there was
“insufficient objective evidence” supporting Mr. Liban’s assertions, he was
really saying that he disbelieved Mr. Liban and, only if Mr. Liban had
presented objective evidence corroborating his assertions, would the officer
have believed them. To my mind, these findings are conclusions about Mr.
Liban’s credibility…
[38]
Likewise, in Latifi, above, this Court considered the PRRA
Officer’s statements that there is “little reliable evidence” of the applicant’s
political activism. The Court concluded that implicit in the PRRA Officer’s
findings was an overall view that the applicant was not credible, and noted the
influence of the credibility concerns of the RPD (reference is also made to Shafi
v. Canada (Minister of Citizenship and Immigration), [2006] 1 F.C.R. 129,
277 F.T.R. 104).
The Officer erred in her treatment of the
medical evidence
[39]
The psychiatric evidence before the Officer was that Ms. Begashaw
has Schizoaffective Disorder and late-onset PTSD. The evidence was that her
untreated psychosis at the time of her traumatic experiences in Ethiopia and
afterwards had blocked her memories of the events, and that her memories could
not emerge until her psychosis was treated. Dr. Lo concludes: “I am of the
opinion that the unusual omission of Ms. Begashaw’s imprisonment and rape in
her previous testimonies is the consequence of a major psychiatric disorder,
namely a schizoaffective disorder, rather than an issue of credibility.” (MR at
p. 68).
[40]
The Officer accepts the psychiatrists’ “diagnosis”, but rejects
their acceptance of Ms. Begashaw’s account of imprisonment in Ethiopia as
the cause; and she rejects the finding that her health would be at risk upon
return:
While
I assign appropriate probative value to the psychiatrists’ opinions, I note
that the source of the reports is the applicant. The psychiatrists’ [sic] have
recounted the applicant’s information as provided to them. I find the
psychiatrists [sic] reports rest on hearsay as they were not witnesses to the
events; they have relied on the applicant’s observations to reach their
diagnosis. I therefore accept the diagnosis as offered by Drs. Chisvin and Lo;
however give little weight for the explanation of its cause. Objective evidence
supports that the applicant suffers from mental health issues….However, she has
provided insufficient objective evidence to support that she was imprisoned,
tortured and raped while in Ethiopia….I find Dr. Lo’s statement that the applicant’s return to Ethiopia
‘at this time’ would be hazardous to her health to be speculative in nature; he
does not indicate on what information he bases this statement….
(Decision at p.
10).
[41]
In the refugee claim context, tribunals can reject a diagnosis
(e.g. of PTSD) if they have, for good reason, rejected the credibility of the
events underlying the diagnosis. Members who are meeting claimants face to
face, and are experts in assessing credibility, do not need to defer to medical
professionals on a credibility issue or a medical diagnosis that is based
entirely on credibility (Yilmaz
v. Canada (Minister of Citizenship and Immigration), 2003 FC 1498, 132 A.C.W.S.
(3d) 965 at paras. 63-81; Trembliuk v. Canada
(Minister of Citizenship and Immigration), 2003 FC 1264, 126 A.C.W.S. (3d) 853 at para. 12; Hassan v. Canada (Minister of Citizenship and
Immigration), 174
F.T.R. 288, 91 A.C.W.S. (3d) 450 at paras. 19-21; Khawaja v. Canada (Minister of
Citizenship and Immigration) (1999),
172 F.T.C. 287, 92 A.C.W.S. (3d) 672).
[42]
Ms. Begashaw faces a very different situation on this PRRA. The
Officer has not met her in order to assess her credibility. Although it is
recognized that holding an interview is not a prerequisite to a decision of a
PRRA Officer; yet, the consideration for an interview is raised in appropriate
circumstances.
[43]
By contrast, Dr. Lo has interviewed Ms. Begashaw twice, as well
as following-up with her by telephone. He is professionally trained, and is
using his training and expertise to determine that Ms. Begashaw has recovered
traumatic memories.
[44]
The Officer accepts Dr. Lo’s opinion that Ms.
Begashaw has recovered traumatic memories. To accept this opinion, but
to reject Ms. Begashaw’s account of the memories that she recovered, is
contradictory.
[45]
Dr. Lo’s opinion comes at the conclusion of his five-page,
detailed report that was based on a thorough review of her medical and
immigration history, two assessment interviews and a telephone conversation
with her. In the report, he describes her history of trauma and psychotic
illness and, late-onset, post-traumatic stress disorder (recognizing that
repression of memories causes delay in recounting and reliving them). It
describes her treatment.
[46]
This Court has repeatedly held that a non-expert decision-maker
errs when she rejects expert psychological evidence without basis (Yilmaz v.
Canada (Minister of Citizenship and Immigration), 2003
FC 1498, 132 A.C.W.S.
(3d) 965; Fidan v. Canada (Minister of Citizenship and Immigration),
2003 FC 1190, 126 A.C.W.S. (3d) 847 at para. 12; Pulido v. Canada (Minister of Citizenship
and Immigration), 2007 FC 209, 155 A.C.W.S. (3d) 648 at paras. 27-35).
[47]
This is particularly important in this case because the expert
opinion that Ms. Begashaw faces a peril to her life is central to her ss. 108(4)
compelling reasons submission. The ss. 108(4) submission was never properly
dealt with by the Officer.
B.
Irreparable Harm
[48]
[35] The second test consists in deciding
whether the litigant who seeks the interlocutory injunction would, unless the
injunction is granted, suffer irreparable harm, that is harm not susceptible or
difficult to be compensated in damages…
(Metropolitan Stores Ltd.,
above;
Toth, above).
Risk
[49]
Ms. Begashaw’s case is based on significant new evidence. Removal
at this point would occur without assurance that there has been a proper
assessment of the very risks against which the PRRA seeks to protect her.
[50]
Though Ms. Begashaw is being removed to the U.S., she has no
status there and received a deportation order from the U.S., in 2003. This is
what had prompted her decision to come to Canada, in the first place. Removal
to the U.S. is just the first step in her removal to Ethiopia (MR, Statutory
declaration of Applicant at para. 21; Damte v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1277, [2008] F.C.J. No. 1620 (QL); Omar v. Canada (Solicitor General), 2004 FC
1740, 136 A.C.W.S. (3d) 112; Hatami v. Canada
(Minister of Citizenship and Immigration), 2004 FC 1765, 136 A.C.W.S. (3d) 113; Augusto v. Canada (Solicitor General), 2004
FC 801, 131 A.C.W.S.
(3d) 924; Cortez v. Canada (Minister
of Citizenship and Immigration), (2003) FCT 725, 238 F.T.R. 307; Gandara v. Canada (Minister of Citizenship and
Immigration) (1997), 125 F.T.R. 151, 68 A.C.W.S. (3d) 711; Ponnampalam
v. Canada (Minister of Citizenship and Immigration) (1995), 30 Imm. L.R.
(2d) 178, 57 A.C.W.S.
(3d) 1004).
[51]
The Ethiopian government continues to persecute opposition
supporters and suspected opposition supporters. The risks set out in the PRRA
submissions and accompanying country documentation continue to the present.
[52]
Ms. Begashaw continues to face risk due to her relatives’ past
affiliation with the AAPO. She also faces risk in her own right due to her
support for the opposition to Ethiopia’s current government. She has developed
her involvement in the past few years through attending meetings and
demonstrations held by the All Ethiopia Unity Cultural and Relief Organization
in Toronto (now the Kinijit Cultural and Relief Organization) (MR: Letter from All Ethiopia Unity Cultural
and Relief Organization in Toronto at p. 74 (in PRRA evidence); Affidavit
of Applicant at para. 14, p. 4; Photographs of Applicant at
demonstration, Affidavit of Applicant, Ex. G).
[53]
The Ethiopian government continues to target opposition activists
as well as suspected activists or sympathizers, as well as their family
members. They face arbitrary arrest and detention and other human rights abuses.
An IRB Response to Information Request also finds that there is information
claiming that one of the parties, in the ruling coalition, has posted agents at
embassies overseas to monitor Ethiopians abroad, and that the Ethiopian
government was attempting to target Ethiopians abroad who are perceived to be
against the government (MR: Affidavit
of N. Shchepetova, Ex. AA, Recent country condition documents).
[54]
Irreparable harm is clearly made out where the applicant’s life,
liberty or safety might be at risk (Sivakumar v. Canada (Minister of Employment and Immigration), [1996] 2 F.C. 872, 63 A.C.W.S. (3d) 912
(C.A.); Hernandez v. Canada (Solicitor General) (1993), 42
A.C.W.S. (3d) 892, [1993] F.C.J.
No. 950 (QL); Membreno Garcia v. Canada (Minister of Employment and
Immigration), [1992] 3 F.C. 306, 55 F.T.R. 104 (T.D.) ; Suresh
v. Canada (1998), 49
C.R.R. (2d) 131, 77 A.C.W.S. (3d) 163).
[55]
As a woman with Schizoaffective Disorder that is only managed
through regular medication, Ms. Begashaw’s psychological integrity is at risk
in Ethiopia. She has a history of hospitalization and psychotic episodes when
she has not been properly treated.
[56]
There is one civilian psychiatric facility in her country, and twenty
two psychiatrists nationally for a population of eighty million people. Only a
few medications are available and in “very limited supplies”. Mental illness is
also severely stigmatized (Affidavit
of Dr. Clare Pain, p. 196). Nevertheless, it must be recognized that it
is not the mental illness that is considered the significant factor in
this case but rather the persecutory treatment that
Ms. Begashaw received that would have caused the mental illness (not the mental
illness in and of itself).
[57]
The sworn evidence of Dr. Clare Pain demonstrates that she has expertise
in this area in addition to having been involved with training Ethiopian
psychiatrists for at least four years as Co-Director of the Toronto Addis Ababa
Psychiatry Project. Dr. Pain also affirms that the Director of the Amanuel
Psychiatric Hospital in Addis Ababa reviewed her affidavit and concurred with
her views (MR: Affidavit of Dr. Clare Pain at p. 196).
[58]
A 2006 report by the World Health Organization and the Ethiopian
Ministry of Health notes that mental health resources are “especially limited”
for women (MR: WHO-AIMS Report on
Mental Health System in Ethiopia at p. 237).
[59]
While the Officer considered one WHO document on mental health
care in Ethiopia, she does not place the information and statistics she derives
from that document in any actual context. Her assessment comes to no conclusion
about the quality or actual availability of services (Decision at pp. 10-11).
[60]
Ms. Begashaw’s psychiatrist of the past five years writes:
Ms.
Begashaw’s stable mental state is due to a combination of the medications
listed above as well as a stable home/work environment. I can safely say that a
relapse of her psychotic illness would occur if she were to not receive her
psychiatric medications for any significant length of time. Additionally,
patients with psychotic disorders such as Schizoaffective Disorder are
extremely sensitive to changes in their routine and support network. A forced
relocation back to Ethiopia would be a severely traumatic event for
this patient and could certainly lead to a relapse of her symptomatology
including a return of suicidal ideation. Patients with Schizoaffective Disorder
are at significantly increased risk for completed suicide compared to the
general population….
(MR: Letter from Dr. Chisvin, April 15,
2009 at p. 187).
C.
Balance of Convenience
[61]
The third branch of the test for a stay or injunction is a
consideration as to where the balance of convenience lies, or otherwise put - who
would be most inconvenienced.
[62]
The public interest is to be taken into
consideration in determining the balance of convenience and is weighed together
with the interests of private litigants (Manitoba, above).
[63]
There is undoubtedly a public interest in the enforcement of the
provisions of the IRPA and the subordinate regulations and policies. The
inherent integrity of the immigration and refugee system and Canadian society
as a whole depends on it. This, also, necessitates ensuring that individuals
facing serious consequences on removal from Canada have an effective access to a
remedy before the Courts. The purpose of such a justifiable remedy should
neither put in jeopardy the immigration and refugee system nor Canadian society
as a whole (Suresh, above).
[64]
Ms. Begashaw poses no danger to the public or to the security of Canada. Ms.
Begashaw would suffer a far greater harm if the stay were not granted than
would the Respondent should the Court permit her to remain in Canada while her
application is pending before this Court (Singh, aobve; Smith, above; Sowkey, above).
VII. Conclusion
[65]
For
all of the above reasons, the Applicant’s motion for a stay of the execution of the
removal is granted pending a final determination of her application for leave
and for judicial review of the negative PRRA decision in her regard.
JUDGMENT
THIS COURT ORDERS that the Applicant’s
motion for a stay of the execution of the removal be granted pending a final
determination of her application for leave and for judicial review of the
negative PRRA decision in her regard.
“Michel M.J. Shore”
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