Date: 20080404
Docket: IMM-1257-08
Citation: 2008 FC 433
Ottawa, Ontario, April 4, 2008
PRESENT:
The Honourable Mr. Justice Lemieux
BETWEEN:
MOUCTAR SOUARESY
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
I. Introduction and
facts
[1]
This
is a motion by Mouctar Souaresy, a citizen of Guinea, for a stay of his
deportation to Guinea set for April 25, 2008, until this Court
considers and determines his application for leave and judicial review filed on
March 14, 2008. That application concerns the lack of a decision on his urgent
application for permanent residence in Canada on humanitarian and compassionate
considerations under section 25 of the Immigration and Refugee Protection
Act (the Act) that was submitted to the Case Processing Centre of the
Department of Citizenship and Immigration (the Centre) on February 12,
2008, by his new counsel at the Étude légale Stewart Istvanffy
(applicant’s motion record, page 8). The application for permanent residence on
humanitarian and compassionate considerations is supported/sponsored by his
spouse Ms. Fatim Touré.
[2]
The
applicant’s new counsel subsequently learned that his client’s removal had been
set for April 25, 2008. By letter dated February 21, 2008, to the
Centre, his counsel asked the Centre to review on an urgent basis the
application for permanent residence on humanitarian and compassionate
considerations and the sponsorship application prior to the applicant’s deportation,
on the ground that he would face incarceration, torture and/or death at the
hands of the authorities in Guinea if he were to return. (Emphasis added.)
[3]
By
letters dated February 27, 2008, counsel for the applicant asked two
Ministers to intervene in this matter: the Minister of Citizenship and
Immigration and the Minister of Public Safety. Considering the identified risks
of cruel treatment, they implored both Ministers to stay the deportation until the
applicant’s file could be reviewed.
[4]
The
applicant’s correspondence to the Canadian authorities was supported by
significant documentation including
- an arrest
warrant dated April 27, 2004, for the applicant issued by the Conakry court of
appeal. The warrant stated that the applicant had been charged with rebellion
in 2004 (applicant’s motion record, page 30);
- letter dated
February 15, 2008, from Amnesty International, Canadian Francophone Section,
opposing the applicant’s removal; according to this organization, the applicant
could be detained and tortured or mistreated, could disappear or be executed extrajudicially
in Guinea (applicant’s record, page 45);
- excerpt from
the Nouvelle Tribune newspaper, published in Conakry, dated January 25,
2005, which refers to the applicant’s arrest, detention and escape (applicant’s
record, page 65);
- letter dated
January 15, 2008, from Mr. Ibrahim Diallo, second vice-president of Canada’s Association
des ressortissants de Guinéennes et Guinéens, stating his support for the applicant’s
permanent residence based on humanitarian and compassionate considerations and
certifying that the applicant [translation]
“is being sought in Guinea for desertion and for disobeying an order of a
superior in the army” (applicant’s record, page 24);
- letter dated
January 25, 2008, from Mr. Foday Kamara, president of the Sierra Leone Nationals
Union-Guinea in Conakry, confirming that the applicant brought humanitarian aid
to the refugees in Sierra Leone during the 1999-2000 crisis (applicant’s record,
page 25);
- other similar
letters from the Sierra Leone Refugee Committee in Guinea and from Mr.
Ibrahim Yansaneh, a senior official at the United Nations (applicant’s record,
pages 27 and 28).
[5]
It
is important, in my view, to summarize the decisions made by the Canadian
immigration authorities concerning the applicant, who had joined the Guinean
army on November 1, 1998, fled Guinea in March 2004 after being detained for
three years, arrived in Canada on March 30, 2004, and claimed refugee
protection on May 11, 2004:
(1) decision
dated July 21, 2006, by the Refugee Protection Division: The panel
determined that the applicant is excluded from the Canadian refugee protection
system because there is reason to believe that he has committed acts referred
to in sections 1F(a) and (c) of the Convention. The panel did not
decide on the inclusion of the applicant, that is, whether he had demonstrated
a reasonable fear of persecution in Guinea. In his Personal
Information Form, the applicant maintained that he had joined the army in
Guinea in 1998, been suspected by the army of collaborating with the rebels to overthrow
the government, been detained from August 2001 to his escape on March 10, 2004,
and was wanted in his country because he was Malinké, his mother was Sierra
Leonian and he was accused of collaborating with the Sierra Leonian rebels;
(2) application
for leave and judicial review dismissed on July 21, 2006, by a judge of
this Court;
(3) On
August 7, 2005, the applicant married Fatim Touré, a Canadian citizen of
Guinean origin who had been granted refugee status in Canada. Prior to his
hearing before the Refugee Protection Division on April 5, 2006, and May 23,
2006, the applicant filed an application for permanent residence on February
8, 2008, sponsored by his wife in the Spouse or Common-Law Partner in Canada class (the
program). This application was refused on January 7, 2008, on the ground
that the applicant did not meet the eligibility requirements of the program
since he was inadmissible to Canada under section 35 of the Act (applicant’s
record, page 55);
(4) The
applicant’s application in October 2007 for a pre-removal risk assessment
(PRRA) was rejected on January 10, 2008, but only communicated to him on
February 20, 2008. During the hearing before this Court in Montréal on March 31,
2008, Mr. Istvanffy, newly mandated, acknowledged that the applicant’s PRRA application
had not been supported by the fresh evidence listed in paragraph 4 of these
reasons;
(5) On
January 29, 2008, before he knew about the negative result of his PRRA
application, the applicant filed a sponsored application for permanent
residence in Canada based on humanitarian and compassionate considerations. That
application is still under review.
II. Analysis and
findings
[6]
The
three tests that the applicant must satisfy to obtain a stay of his deportation
are well known. According to RJR – MacDonald Inc. v. Canada (Attorney
General), [1994] 1 S.C.R. 311, the applicant must
(1) demonstrate
that there is a serious question to be tried. “Whether the test has been satisfied should
be determined by a motions judge on the basis of common sense and an extremely
limited review of the case on the merits” (RJR – MacDonald,
above, at page 348); that is to say, “Once satisfied that the application is
neither vexatious nor frivolous, the . . . 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.” (RJR – MacDonald, above, at page 337, last
paragraph)
(2) convince the Court
that he or she will suffer irreparable harm if the stay is denied. “‘Irreparable’ refers to
the nature of the harm suffered rather than its magnitude. It is harm which . .
. cannot be quantified in monetary terms . . .” (RJR – MacDonald,
above, at page 341).
(3) show that the
balance of convenience favours the applicant. This test consists of “a determination 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.”
(RJ – MacDonald,
above, at page 342).
[7]
In
this case, I believe that the applicant has discharged his burden of establishing
that these three tests have been satisfied.
(a) Serious
question
[8]
In
Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R.
3 , the Supreme Court of Canada addressed the issue of whether the Canadian Immigration
Act permitted deportation to torture and found as follows at paragraphs 77 and
78:
77 The Minister is obliged to exercise the
discretion conferred upon her by the Immigration Act in accordance with
the Constitution.
This requires the Minister to balance the relevant factors in the case before
her. As stated in Rehman, supra, at para. 56, per Lord
Hoffmann:
The question of whether the risk to
national security is sufficient to justify the appellant’s deportation cannot
be answered by taking each allegation seriatim and deciding whether it has been
established to some standard of proof. It is a question of evaluation and
judgment, in which it is necessary to take into account not only the degree of
probability of prejudice to national security but also the importance of the
security interest at stake and the serious consequences of deportation for the
deportee.
Similarly, Lord Slynn of Hadley stated,
at para. 16:
Whether there is . . . a real possibility
[of an adverse effect on the U.K. even if it is not direct or immediate] is a
matter which has to be weighed up by the Secretary of State and balanced
against the possible injustice to th[e] individual if a deportation order is
made.
In Canada, the balance struck by the Minister must
conform to the principles of fundamental justice under s. 7 of the Charter.
It follows that insofar as the Immigration Act leaves open the
possibility of deportation to torture, the Minister should generally decline to
deport refugees where on the evidence there is a substantial risk of torture.
[Emphasis added.]
78 We do not exclude the possibility that in
exceptional circumstances, deportation to face torture might be justified,
either as a consequence of the balancing process mandated by s. 7 of the Charter
or under s. 1 . . .
[Emphasis added.]
[9]
In
general, this determination by the Supreme Court was adopted by Parliament in
sections 97 and 112 to 115 of the Immigration and Refugee
Protection Act, which was proclaimed in force on June 22, 2002.
[10]
The
applicant is subject to a deportation order, the validity of which is not in
dispute. He is alleging a substantial risk of detention, torture or death if he
is deported to Guinea. In addition, the applicant very recently filed
an application for permanent residence on humanitarian and compassionate
considerations, relying on the power of the Minister of Citizenship and Immigration
(the Minister) under section 25 of the Act, which confers on the Minister a
very broad discretion to grant an applicant “permanent resident
status or an exemption from any applicable criteria or obligation of this Act
if the Minister is of the opinion that it is justified by humanitarian and
compassionate considerations relating to them . . . or by public
policy considerations.”
[11]
In
my view, the serious question raised by the application for leave and judicial
review in this case is as follows: “Considering the applicant’s particular
circumstances, was the Minister required to determine the applicant’s recent
application for permanent residence on humanitarian and compassionate
considerations before deporting him to Guinea, when the evidence in the record appears
to establish a serious possibility of the risk of torture, a risk to his life
or a risk of cruel and unusual treatment, notwithstanding the fact that the
applicant’s application was filed very recently and contains fresh evidence
that the applicant had not submitted during the PRRA process?”
(b) The
other tests
[12]
It
goes without saying that a serious risk of torture or execution constitutes
irreparable harm and that the balance of convenience favours the applicant.
ORDER
THE COURT
ORDERS that
the applicant’s deportation to Guinea be stayed until the decision of this Court
on the application for leave to seek judicial review and, if allowed, until the
decision of this Court on the judicial review.
“François Lemieux”
Certified
true translation
Mary
Jo Egan, LLB
Email this Content