Date: 20010808
Docket: IMM-2638-01
Neutral Citation: 2001 FCT 869
Between:
HANY NOSHY ATHANASSIOUS MOUSSA,
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
Muldoon, J.
1. Introduction
[1] This is a motion to stay the execution of a removal order against the applicant, who was scheduled to be removed to Egypt on June 5, 2001. The applicant has submitted an application for leave and for judicial review to challenge the pre-removal risk opinion which was dismissed on April 19, 2001.
2. Issues
a. Is there is a serious issue to be tried?
b. Is there risk that the applicant will suffer irreparable harm if he be removed from Canada; and
c. Does the balance of convenience tip in favour of staying the execution of the removal order, until the Court has determined the merits of the application for leave and, if leave be granted, until after the application for judicial review.,
3. Applicant's Submissions
a. Serious Issue
[2] The Post-Claim Determination Officer (PCDO) concluded that there was no link between the harm feared by the applicant and the country conditions. The applicant submits that he fears persecution on the basis of his membership in a particular social group, namely, lawyers who, in representing clients, engage in activities perceived to be un-Islamic by Muslim fundamentalists. The applicant submits that, as with the ground of political opinion, the important consideration here is the perception in the eyes of the persecutors, and that the PCDO erred by misinterpreting the meaning of persecution on the basis of religion.
[3] In Chan v. M.E.I.,[1995] 3 S.C.R. 593, Mr. Justice La Forest expanded on his reasons from Ward regarding membership in a particular social group. He stated:
As Professor Macklin recognizes, the question that must be asked is whether the appellant is voluntarily associated with a particular status for reasons so fundamental to his human dignity that he should not be forced to forsake that association. The association or group exists by virtue of a common attempt made by its members to exercise a fundamental human right.
...
I accept the respondent's categorization of the right asserted as the basic rights of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children. This fundamental right has been recognized in international law in the International Covenant on Civil and Political Rights ...
[4] The fundamental right here is the right to freedom of expression, a right which is contained in the International Covenant on Civil and Political Rights:
Article 19
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
[5] The applicant submits that in representing his clients, he exercised his right to freedom of expression. He then voluntarily associated with members that group. The PCDO erred by misinterpreting the meaning of persecution on the basis of membership in a particular social group. [Re Ontario Film and Video Appreciation Society v. Ontario Board Censors (1983), 147 D.L.R. (3d) 58.].
[6] The PCDO held that the applicant did not attempt to obtain state protection. In Ward v. M.E.I., [1993] 2 S.C.R. 689, the Supreme Court of Canada stated:
...The issue that arises, then, is how, in a practical sense, a claimant makes proof of a state's inability to protect its nationals as well as the reasonable nature of the claimant's refusal actually to seek out this protection. On the facts of this case, proof on this point was unnecessary, as representatives of the state authorities conceded their inability to protect Ward. Where such an admission is not available, however, clear and convincing confirmation of a state's inability to protect must be provided. For example, a claimant might advance testimony of similarly situated individuals let down by the state protection arrangement or the claimant's testimony of past personal incidents in which state protection did not materialize...
[7] The applicant asked for protection from the Egyptian police authorities, but he was ordered out of the police station. Afterwards, the was contacted by a Muslim extremist who knew that he had gone to the authorities for protection. The documentary evidence considered by the PCDO indicated that a police investigation into the murders of two Christians resulted in hundreds of citizens, most of them Christians, being detained, mistreated and tortured by the police. The PCDO did not doubt the applicant's credibility, and, it was unreasonable to expect the applicant to continue to seek protection. Furthermore, the PCDO failed to consider circumstances particular to the applicant - that he was a practicing lawyer, and that he was in a position to know about the likelihood of obtaining protection. [Zalzali v. M.E.I., [1991] 3 F.C. 605 (C.A); Maharajah v. M.E.I. (24 May 1994), A-260-91 (F.C.A.); Toro v. M.E.I. [1981] 1 F.C. 652 (C.A.)]. This Court notes with approval the written submissions in support of his motion, filed for the applicant on May 30, 2001.
b. Irreparable Harm
[8] The applicant submits he will suffer irreparable harm because he will face risk to his life or liberty if removed. [Membreno-Garcia v. M.E.I. (1992), 17 Imm. L.R. 291 (F.C.T.D.)] The applicant submits that his fiancée, and his immediate family will also suffer irreparable harm if he is deported. [Richards v. M.E.I. (8 June 1999), IMM-2720-99 (F.C.T.D.)]
c. Balance of Convenience
[9] The applicant has been self-supporting since April, 2000. He has not committed a criminal offense, and volunteers for the Coptic Christian church in Canada. The applicant submits that the balance of convenience leans in his favour.
4. Respondent's Submissions
[10] There were no submissions put forward by the respondent when these reasons were written.
5. Order Sought
[11] The applicant requests that the execution of the removal order be stayed. The performance and findings of the Post-Claim Determination Officer virtually make such a stay mandatory. This Court determines the three issues stated in paragraph [1] above, all affirmatively.
Ottawa, Ontario,
August 8, 2001
F.C. Muldoon
Judge
Date: 20010808
Docket: IMM-2638-01
Ottawa, Ontario, August 8, 2001
Present: The Honourable Mr. Justice Muldoon.
Between:
HANY NOSHY ATHANASSIOUS MOUSSA,
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
O R D E R
UPON MOTION, dated the 30th day of May 2001, on behalf of the applicant, for:
1. An order that the execution of the removal order be stayed until such time as his application for leave and for judicial review is determined,
2. Such further and other order as this Honourable Court deems just, now
THIS COURT ORDERS THAT: the execution of the said removal order against the applicant be, and it is hereby stayed absolutely until such time as his intended application for leave and judicial review be determined, and until 30 days thereafter; and longer if his presence in Canada be lawfully extended even into the future.
F.C. Muldoon
Judge