Date: 20000317
Docket: IMM-6259-99
Ottawa, Ontario, this 17 th day of March 2000
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
ALTIN ABAZI and KLODETA ABAZI
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
PELLETIER J.
[1] Altin Abazi and his wife Klodeta are failed refugee claimants from Albania who seeks a stay of the removal order against them pending the hearing of their application for judicial review of the rejection of their H & C application.1 The Abazis have a Canadian born child who will soon be three years old. The rejection of their refugee claim was based upon findings that Mr. Abazi was not subject to the persecution which he alleged. A risk assessment prepared for the purposes of the processing of the H & C application found that the Abazis would not be subject to "a risk any different than that of any other citizen were they to return to Albania". The risk assessment was prepared by a Post Determination Claims Officer. The H & C Officer referred to the risk assessment and indicated that she "concurred with it".
[2] The Abazis fear return to Albania largely because the apparatus of government has broken down significantly. The population is heavily armed and the corruption is endemic. Altin Abazi claims that he would be persecuted by the governing party or its surrogates, but neither the Convention Refugee Determination Division nor the Post Determination Claims Officer were persuaded that this was likely.
[3] The applicants seek to set aside the H & C refusal on several grounds: that the H & C Officer applied the wrong criteria to the determination of their claim when she simply adopted the Post Determination Claims Officer"s risk assessment, that the H & C Officer failed to properly consider the degree of their establishment in Canada as provided in the respondent"s guidelines, and that the H & C Officer failed to properly consider the effect of deportation upon their Canadian born daughter.
[4] The tri-partite test to be met in an application for a stay of execution was set out in Toth v. Canada (1988) 86 N.R. 302, [1988] F.C.J. No. 587: there must be a serious issue to be tried in the underlying judicial review application, there must be a showing of irreparable harm if the stay is not granted, and the balance of convenience must favour the applicant.
[5] The treshhold for a serious issue is relatively low. So long as the issue is not frivolous and has some prospect of success, the test has been met. In this case, the issue as to the application of the wrong criteria appears to meet the low threshhold. The risk assessment in question specifically recites that it was prepared for the purposes of the H & C application and not as part of a Post Determination Refugee Class claim. The criteria to be applied in such a determination are set out in s. 2 of the Immigration Regulations 19782 The opening paragraph of the risk assessment describes the nature of the assessment:
| This is an assessment of the extent to which the removal of the applicant from Canada to [Albania] would subject them to an objectively identifiable risk to life, or of extreme sanction, or of inhumane treatment. This opinion is being rendered at the the request of an Immigration Officer to assist that officer in conducting a 114(2) review of the applicant"s case. |
[6] The report concludes that...
| ...no credible link has been established between the applicants" personal circumstances and the country conditions to conclude the applicants would be subjected to a risk any different than that of any other citizen were they to return to Albania. |
[7] No detailed examination is required to establish that, notwithstanding that the report was prepared for the purposes of a s. 114(2) application, the criteria applied by the Post Determination Claims Officer were those applicable to a Post Determination Claims application. To the extent that the Minister"s guidelines for the processing of H & C applications set out a different set of criteria, the H & C Officer"s reliance upon the Post Determination Claims Officer"s assessment was in error. The applicants have established that there is a serious issue to be tried.
[8] The next question is that of irreparable harm. The applicants argue that they will be exposed to an unacceptable degree of risk of personal violence if they are returned to Albania. They support this by reference to abundant documentation showing that the situation in Albania has deteriorated since the date of their refugee hearing. The difficulty is that there is no evidence which ties these developments to the applicants" personal circumstances. The applicants" position amounts to saying that no one could or should be deported to Albania. I have no doubt that Albania is a very unpleasant place which anyone who had any choice in the matter would avoid at all costs. But, it is not for this Court to declare Albania out of bounds for all deportees. In the absence of some evidence of particular hardship for these applicants, irreparable harm has not been shown.
[9] The applicants also raise the issue of irreparable harm to their 2 " year old Canadian born daughter if she is forced to accompany them to Albania. In the interview, Klodeta Abiza commented on the inhumanity of sending a young child to a place where children play with bullets. The H & C Officer"s response was that "The idea of a child playing with bullets is not supported. A child plays with whatever the parents expose them to." This is an unnecessarily literal answer to a metaphorical comment. One notes that the bulk of the assessment is contained upon a form provided for that purpose by the respondent which has sections for the various items to be considered. The reference to the applicants" daughter appears on a separate sheet which is attached to the main form. The impression conveyed is that of an afterthought. It is not obvious that the child"s interests received any consideration beyond the closing sentence of this section:
| The best interests of the child is to be together with the parents wherever that may be. |
[10] It is established that irreparable harm need not necessarily be irreparable harm to the applicants. In Toth supra, the Federal Court of Appeal found irreparable harm in the failure of the applicant"s business which supported the applicant, his family and a number of other families. Irreparable harm to the applicants" daughter would satisfy the criterion of irreparable harm. Unfortunately, there is no evidence which would establish harm to the daughter beyond the harm inherent in the family relocation to a troubled part of the world. Because she is a Canadian citizen, she will always be free to return to Canada should that be her wish or that of her parents.
[11] The evidence does not establish irreparable harm from the applicants" repatriation to Albania in and of itself. However, there is another aspect to the matter. The applicants are currently operating their own business which supports them and has enabled them to accumulate savings of $5,000. If they are deported, they will lose the business and it is likely that the $5,000 will be consumed for various purposes. If they are ultimately successful in their H & C application, they will be entitled to apply for landing from within Canada. But they will have lost their business and their savings and will have to start over. While this is simply a monetary loss, it is the type of loss which was found to constitute irreparable harm in Toth supra . If those losses are to be incurred, they should only be incurred when it is clear that the applicants cannot remain in Canada. As a result, I find that irreparable harm has been established.
[12] Having regard to the conditions which currently prevail in Albania, the balance of convenience favours the applicants.
[13] There will therefore be an order staying the deportation of the applicants until their application for leave and judicial review has been finally disposed of.
ORDER
The execution of the departure order against the applicants is stayed until the final determination of their application for leave and judicial review.
"J.D. Denis Pelletier"
Judge
__________________
1 An application pursuant to section 114(2) of the Immigration Act R.S.C. 1985 c. I-2 to be relieved of the obligation to apply for landing from outside Canada..
2 "member of the post-determination refugee claimants in Canada class" means an immigrant in Canada ...(c) who if removed to a country to which the immigrant could be removed would be subjected to an objectively identifiable risk, which risk would apply in every part of that country and would not be faced generally by other individuals in or from that country,
(i) to the immigrant's life, other than a risk to the immigrant's life that is caused by the inability of that country to provide adequate health or medical care, (ii) of extreme sanctions against the immigrant, or (iii) of inhumane treatment of the immigrant;
"demandeur non reconnu du statut de réfugié au Canada" Immigrant au Canada : ...c) dont le renvoi vers un pays dans lequel il peut être renvoyé l'expose personnellement, en tout lieu de ce pays, à l'un des risques suivants, objectivement identifiable, auquel ne sont pas généralement exposés d'autres individus provenant de ce pays ou s'y trouvant :
(i) sa vie est menacée pour des raisons autres que l'incapacité de ce pays de fournir des soins médicaux ou de santé adéquats, (ii) des sanctions excessives peuvent être exercées contre lui, (iii) un traitement inhumain peut lui être infligé.