Date: 20080919
Docket: IMM-4108-08
Citation: 2008 FC 1060
BETWEEN:
IMRE
GORZSAS
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND
EMERGENCY
PREPAREDNESS
Respondent
REASONS FOR
ORDER
PHELAN J.
[1]
These
are the brief reasons for the stay of execution issued late on September 18,
2008.
[2]
The
Applicant is a gay male of Roma background from Hungary. He had been
unsuccessful on his first PRRA where he claimed fear of persecution because he
was both gay and a Roma. He failed to appear for removal and a warrant was
issued.
[3]
The
Applicant claimed that he had moved and neglected to advise authorities which
resulted in him not receiving that PRRA decision and notice of removal.
[4]
In
March 2008, the Applicant was diagnosed HIV positive. On June 18, 2008, the
Applicant submitted a second PRRA application based upon the new evidence of
his medical condition and this, combined with his sexual orientation and
ethnicity, made him an even greater target of persecution in Hungary. That PRRA
application is still outstanding.
[5]
On
Tuesday, September 16, 2008, the Applicant was arrested and his removal
scheduled for Thursday, September 18, 2008. He filed a deferral request on
Wednesday, September 17, 2008, which was denied on September 18, 2008. The
motion for this stay was heard while the Applicant was awaiting his flight.
[6]
The
Respondent has no explanation for the haste in removing the Applicant nor for
the failure to deal with his second PRRA application which has been pending for
three months.
[7]
The
powers of a Removals Officer have been held to be very limited. This is
particularly so when all the available rights have been exhausted. Indeed,
Removals Officers have been held not to have expertise or obligations to deal
with H&C or PRRA matters.
[8]
However,
Justice Mosley held in Wong v. Canada (Minister of
Public Safety and Emergency Preparedness), 2008 FC 783, that
where a PRRA has not been done, some assessment of risk must be undertaken when
removal precedes a PRRA. Canada is obliged not to return failed
immigration claimants to places where they face persecution, torture or death.
[9]
The
deferral request was denied. The central focus of that decision was the
availability of medical treatment for HIV; personal risk was at best a minor
consideration. The decision also makes assumptions about the right of Hungary’s citizens
to freely move within the EU which are not substantiated.
[10]
I
am satisfied that on the Wang (Wang v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 148) standard, the Applicant has
raised a serious issue.
[11]
That
being said, he has also established irreparable harm sufficient for purposes of
a stay. One consequence of his removal is to render his three-month old PRRA
moot. There is nothing to suggest that this PRRA is opportunistic.
[12]
Finally,
the balance of convenience flows from the serious issue and irreparable harm
findings. While the Applicant failed to appear for his first removal, it is
hard to say, as alleged, that he had gone “underground” when he was
sufficiently “above ground” to file his second PRRA application arising from
his AIDS condition.
[13]
A
stay of removal has been issued to at least allow for the full and fair
assessment of risk claimed in the Applicant’s pending PRRA application.
“Michael
L. Phelan”
Ottawa, Ontario
September
19, 2008
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4108-08
STYLE OF CAUSE: IMRE
GORZSAS
and
THE
MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
PLACE OF
HEARING: Ottawa, Ontario (teleconference)
DATE OF
HEARING: September
18, 2008
REASONS FOR ORDER: Phelan J.
DATED: September
19, 2008
APPEARANCES:
|
Mr. John
Norquay
|
FOR THE APPLICANT
|
|
Ms. Laoura
Christodoulides
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
HIV & AIDS
LEGAL CLINIC (ONTARIO)
Toronto,
Ontario
|
FOR THE APPLICANT
|
|
MR. JOHN H.
SIMS, Q.C.
Deputy
Attorney General of Canada
Toronto, Ontario
|
FOR THE RESPONDENT
|
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