Date: 20070207
Docket: IMM-7818-05
Citation: 2007 FC 144
Ottawa, Ontario, February 7,
2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
CANADIAN COUNCIL FOR REFUGEES,
CANADIAN COUNCIL OF CHURCHES,
AMNESTY
INTERNATIONAL, and JOHN DOE
Applicants
and
HER
MAJESTY THE QUEEN
Respondent
REASONS FOR INTERIM ORDER AND INTERIM
ORDER
[1]
In
the course of the argument of this judicial review, the Applicants brought a
motion for an interlocutory injunction directing the Respondent to allow John
Doe and his wife to enter Canada from the United States pending the determination
on this judicial review or, alternatively, for an order restraining the
Respondent from denying him or his wife entry into Canada.
[2]
The
Applicants had brought a motion for a similar injunction in August 2006 before
Justice Hughes. The learned judge dismissed that motion principally on the
grounds that irreparable harm had not been established because John Doe had not
exhausted available remedies in the United States, nor had he explained
his failure to seek protection in other countries, nor had he provided
sufficient evidence of risk in Columbia. As a result and given
the strong presumption of the legitimacy of legislation, the balance of
convenience favoured the Respondent. It must be remembered that John Doe lost
his immigration case in the United States because in addition to not filing
within one year, there was insufficient evidence of risk, specifically that
John Doe had not been targeted by the anti-government group, FARC, but by criminals
generally.
[3]
Since
Justice Hughes’ ruling there have been some critical changes to John Doe’s
situation. Firstly, he has now been arrested by U.S. authorities and his
deportation to Columbia is imminent. Secondly, and more profoundly,
there is new evidence of risk should John Doe be returned to Columbia.
[4]
The
evidence is somewhat tentative but it suggests that members of FARC have
continued to look for John Doe. Most telling is that in December John Doe’s
brother was assaulted by people who were looking for John Doe. The brother made
an official complaint to police about the incident and he has now disappeared.
This is evidence that was not available to either Justice Hughes or to U.S. immigration decision-makers.
[5]
In
addressing the tripartite test for an injunction, it is relatively easy to
dispose of the first test of whether there is a serious issue. The two days of
argument and the mounds of evidence and authorities speak to the very serious
nature of the legal issues.
[6]
On
the issue of irreparable harm, even recognizing the factual differences between
this case and those in the Federal Court of Appeal’s decision in Suresh v.
Canada (Minister of Citizenship and Immigration) (C.A.), [1999] 4 F.C. 206,
Justice Robertson’s reasoning has relevance here:
No transgression of a basic human right
can be accurately measured or compensated by money. This is particularly true
in immigration cases involving deportation to a country which fails to abide by
international norms respecting human rights.
…
Clearly, the issue of irreparable harm
can be answered in one of two ways. The first involves an assessment of the
risk of personal harm if a person is deported or deported to a particular
country. The second involves an assessment of 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 enjoy the benefits associated with a positive ruling.
[7]
While
these words may well apply to John Doe, to some extent he is the maker (or
contributor) of his own “mischief”. He has hidden from U.S. authorities
after ordered to leave and he has failed to exhaust his legal remedies. In this
regard I do not mean making blatantly useless motions just for the sake of
proving the inevitable.
[8]
Given
this new evidence, John Doe has not sought a stay of his deportation and a
re-opening of his case on the grounds of what is arguably compelling evidence
of risk.
[9]
In
the face of this evidence, and without in any way presuming to speak to or for
U.S. authorities, it is difficult to conceive that such authorities would not,
at least, allow such a request for a stay and reconsideration to be
entertained. Even the Respondent, quite rightly, accepted that this new
evidence might have an impact on an U.S. immigration judge or
the BIA.
[10]
As
to the balance of convenience, that determination would be influenced by
whether John Doe seeks to exhaust his legal remedies.
[11]
In
addition, the Court remains concerned about the possibility of mootness. The
Court is also concerned that, as advised by the Respondent’s counsel, if this
motion was granted now and the Applicant came to Canada, Canadian
authorities have 90 days in which to make an eligibility determination.
[12]
As
a consequence, the Court will withhold pronouncing its decision on this
injunction motion on condition that the Applicant John Doe seeks a stay of
deportation and such other relief as may be necessary within seven days of this
Order. The Court remains seized of this matter in the interim and counsel are
to advise the Court of any such requests to U.S. authorities
and the disposition thereof.
[13]
The
existing Order of this Court issued earlier today but pronounced orally remains
in effect as no determination on this request for an interlocutory injunction
has been made.
[14]
The
Court makes no order with respect to John Doe’s wife as there is no evidence of
imminent risk.
INTERIM ORDER
IT IS ORDERED that the
decision on the interlocutory injunction application is deferred on the
conditions stipulated in the Reasons. The current Order of February 7, 2007
remains in effect.
“Michael
L. Phelan”
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