Date: 20020422
Docket: IMM-1699-02
Neutral citation: 2002 FCT 455
Ottawa, Ontario, Monday the 22nd day of April 2002
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
RAMI SHALHOUB
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] On April 15, 2002, Rami Shalhoub moved for an order that his removal from Canada be stayed.
[2] Mr. Shalhoub is 18 years of age and was born in Nablus in the area referred to as the West Bank. While he holds a passport issued by the Palestinian Authority, he is considered to be stateless. He came to Canada on August 26, 2000 on a student visa and made a claim to Convention refugee status on October 5, 2000. Mr. Shalhoub then withdrew his claim for Convention refugee status on March 19, 2002. The FOSS notes put in evidence by the Minister indicate that at that time Mr. Shalhoub's then lawyer advised Canadian Immigration that Mr. Shalhoub was ready to return home, and that Mr. Shalhoub was in possession of an airline ticket and would depart Canada on April 12, 2002.
[3] On April 11, 2002, Mr. Shalhoub advised Canadian Immigration that he no longer wished to leave Canada. As a result, arrangements were made for Mr. Shalhoub to be removed from Canada on April 15, 2002. The Notice of Removal Arrangements advised that Mr. Shalhoub would depart from Toronto on April 15, 2002 at 11:55 p.m. on a direct flight to Tel Aviv.
[4] Mr. Shalhoub swore in his affidavit in support of his motion for a stay that at the time he made his arrangements to return home he believed that it was possible for him to be met at the airport in Tel Aviv by family members who would ensure that he could pass safely into a Palestinian controlled area. However, after withdrawing his claim for Convention refugee status and making his arrangements, the situation changed dramatically. In Mr. Shalhoub's words:
The present situation in the region is volatile. The two towns where I could have received shelter upon my return, Nablus and Jenin, have sustained massive attacks from the Israeli army. I was able to telephone my mother on a cell phone several days ago and learned that our family home had been demolished. She and my aunt, the only family members with whom I was raised as my father left my mother at the time of my birth, are now living in the streets.
[5] On Friday, April 12, 2002, counsel for Mr. Shalhoub requested of the removal officer that a risk assessment be conducted. While there is controversy as to the exact response made to that request, it is agreed that no risk assessment was conducted and that the removal officer did not defer removal to permit such assessment.
[6] At 5:00 p.m. on April 15, 2002, I heard the motion brought on behalf of Mr. Shalhoub for a stay of removal. Fundamentally at issue was whether a serious question was raised by Mr. Shalhoub. Counsel for the Minister opposed any adjournment of the proceedings, and opposed any stay, on the basis that by withdrawing his refugee claim Mr. Shalhoub had forfeited his right to a Post-Determination Refugee Claimants in Canada Class ("PDRCC") assessment, and he had not filed a humanitarian and compassionate application on the basis of risk. Therefore, it was said by the Minister that a removal officer had no jurisdiction to defer removal to allow for a risk assessment.
[7] What follows are my reasons, given orally at 6:10 p.m. on April 15, 2002, for allowing the stay.
[8] In Saini v. Canada (Minister of Citizenship and Immigration), [1998] 4 F.C. 325 (F.C.T.D.) Justice Gibson held that under section 48 of the Immigration Act, R.S.C. 1985, c. I-2 discretion is vested in a removal officer to defer the making of removal arrangements pending a risk assessment and determination. Justice Gibson stated at paragraph 19 of his reasons that:
I conclude that the "broad range of circumstances" that Madam Justice Simpson found to be contemplated by section 48 of the Immigration Act [in Poyanipur v. Canada (Minister of Citizenship and Immigration) (1995), 116 F.T.R. 4 (T.D.)] includes discretion to consider whether it is reasonable to defer the making of removal arrangements pending a risk assessment and determination. Accordingly, it follows that a removal officer may have regard to cogent evidence of risk in removal to a particular destination and as to whether or not an appropriate risk assessment has been conducted and evaluated, solely for the purpose of informing his or her exercise of discretion regarding deferral.
[9] In Saini there was neither a pending PDRCC application nor a pending humanitarian and compassionate application. The principal articulated by Justice Gibson in Saini was in no way doubted by Justice Pelletier in the later decision of Wang v. Canada (Minister of Citizenship and Immigration), [2001] 3 F.C. 682 (T.D.).
[10] In the present case, the removal officer did not have regard to the issue of risk of removal. The affidavit filed on the Minister's behalf states essentially that this was a result of lack of time.
[11] In my view, having closely examined the merits of this application, this raises a sufficient likelihood of success on the underlying application as to satisfy the first branch of the Toth test.
[12] The evidence of country condition put before the Court in documents prepared by Amnesty International, the International Committee of the Red Cross and the Washington Post satisfies me that, if returned, the applicant faces a serious risk of irreparable harm.
[13] It follows that the balance of convenience favours granting the requested stay.
[14] The motion for a stay was granted.
"Eleanor R. Dawson"
Judge