Date: 20040130
Dockets: IMM-10112-03 and IMM-10521-03
Citation: 2004 FC 142
BETWEEN:
HOK MAI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
INTRODUCTION
[1] By Notice of Motion filed the 2nd of January, 2002, the Applicant seeks a stay of execution of the removal order that has been outstanding against him since 1994, pending: first, determination of his application for leave and for judicial review of a pre-removal risk assessment decision that was unfavourable to him: secondly, determination of a further application for leave and for judicial review of a removal "decision" fixing the Applicant's removal arrangements; and finally, a decision on a humanitarian and compassionate grounds application. As of the final date of hearing of the Applicant's motion, there was no evidence before the Court that the humanitarian and compassionate grounds application had been filed.
[2] Following an initial hearing by teleconference on the 7th of January, 2004 which resulted in an interim stay of removal, and a resumed hearing by teleconference on the 27th of January, 2004, the Court reserved its decision and indicated to counsel that an order would issue before the rescheduled removal date for the Applicant which is the 1st of February, 2004. The Court further indicated that reasons would either accompany the order or, if that proved impracticable, would follow the order. These are those reasons.
[3] Apart from this paragraph, these reasons relate solely to the application on file IMM-10112-03 for a stay pending determination of the application for leave and for judicial review arising out of the negative pre-removal risk assessment. The Applicant's application on file IMM-10521-03, on which no motion for a stay of removal has been filed but which is "piggy-backed" onto the motion on file IMM-10112-03, presents, I am satisfied, no serious issue to be tried that would support a stay of removals. The fact that an officer in the Respondent's Ministry failed to take into account the "best interests" of the Applicant's Canadian children simply does not impact on a notification to the Applicant of arrangements for his removal, at the very least, in the absence of any evidence of a request made to the officer to reconsider the removal arrangements in light of the best interests of the Applicant's children. There was no evidence before the Court that any such request for reconsideration was ever made. Finally, as already noted, there was no evidence before the Court that a humanitarian and compassionate grounds application had been filed on behalf on the Applicant. In the absence of such evidence, the Court as presently constituted regards itself as having no grounds whatsoever for ordering a stay pending disposition of an application that might never be filed.
BACKGROUND
[4] The Applicant was born in Cambodia on the 1st of July, 1971. He never knew his biological father. He was one (1) of seven (7) siblings. When he was five (5) years old, his mother remarried.
[5] One (1) year after his mother's remarriage, civil war broke out in Cambodia. In 1977, when the Applicant was six (6) years old, he and his stepfather, along with others, were ambushed by members of the Khmer Rouge while working in a rice field. The Applicant's stepfather was shot dead. The Applicant was conscripted by the members of the Khmer Rouge and trained to fight against the Vietnamese and Thai. When the Applicant was nine (9) years old, he escaped from an army camp. He alleges that he fled through the jungle by day and by night for "about a month". He finally encountered other refugees and went with them to the Thai border.
[6] The Applicant apparently lived in a refugee camp for young people when he was between the ages of ten (10) and twelve (12).
[7] At some time during the period that the Applicant was in a refugee camp, he encountered an older brother. In 1983, the Applicant, together with his older brother as his guardian, was selected to come to Canada as a member of the Indo-Chinese Designated Class, a class described on behalf of the Respondent as "...a humanitarian class that allowed persons who did not necessarily meet the definition of refugee as set out in the Geneva Convention Relating to the Status of Refugees" to come to Canada.
[8] The Applicant has never been determined to be a Convention refugee, or a person in need of protection within the meaning given to that phrase in subsection 97(1) of the Immigration and Refugee Protection Act[1]. That being said, in Nguyen v. Canada (Minister of Employment and Immigration)[2], then Chief Justice Isaac, in dissenting reasons, at page 237, described Indochinese asylum seekers at the relevant time, being persons such as the Applicant, as "...de facto refugees, even though many of them might not have met the definition of refugee as set out in the Geneva Convention..." [citation omitted].
[9] Since the Applicant's arrival in Canada, the Applicant has had a checkered history. His relationship with his brother broke down. The Applicant alleges that he was abused by his brother. He ceased at an early age to pursue an education. His employment history was itself checkered. He has an extensive criminal record, although sentences imposed on him would tend to indicate his offences were relatively minor, notwithstanding that a number of his convictions are for assault and one is for assault involving a weapon. He has apparently relied extensively on welfare.
[10] The Applicant attests that he has lived with a woman, apparently a Canadian citizen, since 1996. She attests to the same effect. They have three (3) children who are now almost six(6), almost five (5) and one and a half years old. The Applicant attests that he is the homemaker for his children while his companion attends school.
[11] With respect to return to Cambodia, the Applicant attests:
I am extremely upset at the prospect of being returned to Cambodia. I do not want to be separated from my children, for their sake and mine. I had a horrible experience in Cambodia before I fled. ... The thought of my going back is keeping me up at night and making me cry.
[12] A recent psychological report reflects posttraumatic stress syndrome symptoms, some degree of sleep disturbance, and a feeling of being overwhelmed, of stress and of depression.
ANALYSIS
a) The test for granting of a stay
[13] In Toth v. Canada (Minister of Employment and Immigration)[3], the Federal Court of Appeal established the tripartite and conjunctive three part test that must be fulfilled in order to justify a stay of removal. The three elements are: first, that there be a serious issue to be tried; secondly, that irreparable harm will result if a stay is not granted; and thirdly, that the balance of convenience favours the Applicant. Subsequent decisions have made it clear that the serious issue to be tried threshold is a low one. There has been much judicial commentary on the concept of "irreparable harm", not all of it leading to common conclusions. The public interest is an element to be considered in weighing the balance of convenience between a person such as the Applicant and the Respondent. There is some authority to the effect that in many circumstances, the balance of convenience follows the determinations with respect to serious issue to be tried and irreparable harm.
b) Serious issue to be tried
[14] Section 96 of the Immigration and Refugee Protection Act defines "Convention refugee" in terminology that essentially mirrors the terminology of the United Nations Convention Relating to the Status of Refugees, signed at Geneva on the 28th of July, 1951, and the Protocol to that Convention signed at New York on the 31st of January, 1967. Subsection 95(1) of the Act provides that refugee protection is "conferred" on a person where a determination that the person is a Convention refugee is made or where a determination is made that the person is a person in need of protection. As noted earlier in these reasons, the Applicant has never been "determined" in accordance with law to be a Convention refugee, nor has refugee protection ever been "conferred" on him. But I am satisfied that such a want of determination and conferral is far from determinative of whether the Applicant is, or at least at one time was, a Convention refugee.
[15] Subsection 108(1) of the Act provides that a person is not a Convention refugee or a person in need of protection in a number of circumstances including circumstances such that the reasons for which the person sought refugee protection have ceased to exist. By virtue of subsection 108(4), subsection 108(1) does not apply to provide that a person is not a Convention refugee or a person in need of protection in the circumstances just described where the person establishes that there are "compelling reasons" arising out of previous persecution, torture, treatment or punishment for that person refusing to avail himself or herself of the protection of the country which he or she left or outside of which he or she has remained, due to previous persecution, torture, treatment or punishment.
[16] In the pre-removal risk assessment decision giving rise of the underlying application for leave and for judicial review, and thus to this motion for a stay of removal, the decision-maker determined that the conditions in Cambodia that led the Applicant to flee Cambodia and seek protection, refugee protection or otherwise, have ceased to exist. The decision-maker did not go on to examine whether or not, notwithstanding that the conditions in Cambodia that led the Applicant to seek protection may have ceased to exist, there are nonetheless "compelling reasons" arising out of the Applicant's previous persecution, torture, treatment or punishment for his refusing, or seeking to refuse, to avail himself of the protection of Cambodia.
[17] Counsel for the Applicant urges that the failure of the decision-maker, on the particular facts of this matter, to consider the "compelling reasons" provision in subsection 108(4) of the Act, notwithstanding that he or she was not specifically requested to consider that provision, constitutes a serious issue to be tried on the application for leave and for judicial review that underlies this stay motion. Against the low threshold for determination of whether or not a serious issue to be tried arises on the facts of this matter, I am in agreement with counsel for the Applicant.
[18] On the facts before the Court, the Applicant endured atrocious experiences and treatment, perhaps amounting to persecution, before fleeing Cambodia at a very young age. I am satisfied that it might reasonably be open to a decision-maker to determine that the experiences and treatment that the Applicant endured at a very young age amounted to persecution and that that persecution was experienced by reason of the Applicant's membership in a particular social group. Whether or not the treatment that he endured amounted to persecution, it was certainly treatment that might well give rise to compelling reasons for the Applicant wishing to refuse to avail himself of the protection of Cambodia.
[19] The decision of the Federal Court of Appeal in Yamba v. Canada (Minister of Citizenship and Immigration)[4] would appear to make clear that it was not incumbent on the Applicant to directly raise the issue of the "compelling reasons" exception to entitle him to consideration under that exception.
[20] Thus, the Applicant succeeds on this element of the Toth test.
c) Irreparable harm
[21] The Court is satisfied that the evidence now before the Court as to the Applicant's experience and treatment in Cambodia, as to his difficult life since his arrival in Canada, with apparently little social or economic support after his early relationship with his older brother broke down, and as to his current psychological state, when combined with the rather limited evidence as to the best interests of the Applicant's young children is sufficient to make out a likelihood that the Applicant and those dependant on him would suffer irreparable harm if he were required to return to Cambodia at this time.
d) Balance of Convenience
[22] The Court is cognizant of the fact that the Immigration and Refugee Protection Act places on the Respondent an obligation to effect removal orders, "as soon as reasonably practicable" after they become effective. The removal order outstanding against the Applicant has been in place for some considerable time. The Court is also conscious of the fact that the Applicant's record of integration into Canadian society and contribution to his own and this country's betterment has been substantially less impressive than might have been hoped for, both by the Applicant and Canadians at large. At the same time, I regret to say that, on the evidence before the Court, Canada's contribution to the integration of the Applicant into Canadian society has equally not been up to the standards that many in this country would regard as commensurate with what one affiant on behalf of the Respondent described as two of Canada's major policy objectives in at least the late 1970s and the early 1980s, namely, "First, to help safeguard the principle of non-refoulement by contributing to international burden sharing and second to respond to the humanitarian needs of persons displaced from Vietnam and Cambodia". I am satisfied that the two objectives are closely interrelated.
[23] Balancing the foregoing considerations, and taking into account my conclusions with regard to the issues of serious issue to be tried and irreparable harm, I conclude that the balance of convenience favours the Applicant.
CONCLUSION
[24] In the result, all three elements of the Toth test having been concluded in favour of the Applicant, this motion for a stay of the execution of the removal order now outstanding against the Applicant will be granted. An order will go staying the execution of the removal order until such time as the application for leave in respect of the decision dated the 3rd of December, 2003 and communicated to counsel for the Applicant on the 8th of December, 2003 that the Applicant's pre-removal risk assessment had not been concluded in his favour has been determined, and, if leave be granted, until the application for judicial review of that decision has been finally determined.
[25] In all other respects, the Applicant's motion for a stay is dismissed.
___________________________
J.F.C.
Ottawa, Ontario
January 30, 2004
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-10112-03 and IMM-10521-03
STYLE OF CAUSE: HOK MAI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: Ottawa, Ontario- Stay heard by teleconference
DATES OF HEARING: January 7, 2004 and January 27, 2004
REASONS FOR ORDER BY: GIBSON J.
DATED: January 30, 2004
APPEARANCES BY:
David Matas For the Applicant
Sharlene Telles-Langdon For the Respondent
SOLICITORS OF RECORD:
David Matas
Barrister & Solicitor
602-225 Vaughan Street
Winnipeg, Manitoba
R3C 1T7 For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
Department of Justice
301 - 310 Broadway
Winnipeg, Manitoba For the Respondent
[
[1] S.C. 2001, c. 27.
[2] [1994] 1 F.C. 232 (F.C.A.).
[3] (1988), 6 Imm. L.R. (2d) 249 (F.C.A.).
[4] (2000), 255 N.R. 388.