Date: 20040520
Docket: IMM-3600-04
Citation: 2004 FC 750
Calgary, Alberta, this 20th day of May, 2004
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
MAJED AFFAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is a motion by the applicant, Majed Affan, for a stay of his removal to Yemen which is scheduled for May 21, 2004. The applicant seeks a stay of his removal pending the outcome of his application for leave and judicial review of the decision of the Pre-Removal Risk Assessment Officer.
[2] The applicant was born in Saudi Arabia, but is a citizen of Yemen.
[3] When the applicant came to Canada to study, he obtained a Saudi exit and reentry visa but due to circumstances beyond his control, he was unable to renew this visa before it expired and Saudi Arabia would not renew the visa after its expiry. The applicant cannot return to Saudi Arabia even though his family still resides there. The applicant will be deported to Yemen.
[4] In late 2002, the applicant's father informed him that his life would be at risk if he returned to Yemen due to a family feud between his family's tribe (the AlSofi) and another tribe (the Al Houmaida), also known as the Bni Hameed (hereinafter referred to as the "other tribe").
[5] The feud is referred to as a "blood feud" and the applicant's cousin and others have already been killed in the feud.
[6] The police were asked to solve the problem and instead of taking action, the police asked the leaders of both tribes to try and resolve the matter themselves. This did not occur as there continues to be killings and other injuries.
[7] The applicant's father has donated money to his tribe and the other tribe has accused the applicant's father of playing a significant role in motivating members of his tribe and as a result, the other tribe has threatened to get revenge by killing the applicant's father and other members of his immediate family.
[8] Neither the applicant's father nor any of his immediate family have returned to Yemen since the death of the applicant's first cousin.
[9] The applicant points to documentary evidence that states that tribal violence continues to be a problem in Yemen and the government seems to have little power to end the killings. Other documentary evidence states that if a tribe is determined to kill an individual, it would be impossible to prevent it in Yemen.
[10] In February 2003, the applicant submitted an application for a Pre-Removal Risk Assessment. On October 23, 2003, an officer determined that the applicant was not a person at risk. The decision was delivered to the applicant on April 5, 2004.
[11] The applicant has filed an application for leave and for judicial review of this decision.
Issue
[12] Should a stay be granted?
Analysis and Decision
[13] In order to obtain a stay, the applicant must satisfy the requirements set out in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.), at page 305:
This Court, as well as other appellate courts have adopted the test for an interim injunction enunciated by the House of Lords in American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 .... As stated by Kerans J.A. in the Black case supra:
The tri-partite test of Cyanamid requires, for the granting of such an order, that the applicant demonstrate, firstly, that he has raised a serious issue to be tried; secondly, that he would suffer irreparable harm if no order was granted; and thirdly that the balance of convenience considering the total situation of both parties favours the order.
The applicant must meet all three branches of the tri-partite test.
[14] Serious Issue
I am satisfied that the applicant has raised a serious issue to be tried and that is whether or not the Pre-Removal Risk Assessment Officer erred by determining that state protection was available to the applicant.
[15] Irreparable Harm
In my view, the applicant has satisfied me, based on the material before me, that he would suffer irreparable harm if removed to Yemen. The applicant, in his affidavit, states that the other tribe has threatened to get revenge by killing his father and/or other members of his
immediate family. The applicant is a member of the immediate family and should he be killed by the other tribe, this would be irreparable harm.
[16] Balance of Convenience
I am satisfied that the balance of convenience favours the applicant. The respondent states that it is under a statutory duty to execute valid removal orders as soon as reasonably practicable. However, I would note that in this case, the Pre-Removal Risk Assessment decision was made in October 2003, but the applicant was only notified of the decision in April 2004. The respondent can still carry out the applicant's removal should he not be successful in his judicial review application. There is no evidence to indicate that the applicant is a threat to the public or that he will not report to authorities if his application is not successful.
[17] The applicant's motion for a stay of his removal from Canada is granted until leave is denied in his application for judicial review and if leave is granted, then until the application for judicial review is dealt with by the Court.
ORDER
[18] THIS COURT ORDERS that:
The removal order issued against the applicant is stayed until leave is denied in his application for judicial review and if leave is granted, then until the application for judicial review is dealt with by the Court.
"John A. O'Keefe"
F. C. J.
Calgary, Alberta
May 20, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3600-04
STYLE OF CAUSE: Majed Affan v. MCI
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: May 19, 2004
REASONS FOR ORDER AND ORDER : O'KEEFE J.
DATED: May 20, 2004
APPEARANCES:
Mr. Michael Sherritt FOR APPLICANT
Mr. Robert Drummond FOR RESPONDENT
SOLICITORS OF RECORD:
Sherritt Greene
Calgary, Alberta FOR APPLICANT
Morris A. Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT