Date: 20011127
Docket: IMM-5318-01
Neutral citation: 2001 FCT 1300
BETWEEN:
LLOYD GEORGE MORGAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicant moves the Court for the stay of the execution of a deportation order scheduled for November 29, 2001. The deportation order was made on November 2, 2000, and became enforceable after the Refugee Division rejected his claim on June 18, 2001.
[2] In his underlying leave application, the applicant attacks the decision of André Martel, an immigration officer, on the ground the respondent refuses to conduct an assessment of the risk of his return to Jamaica raised in his October 15, 2001 application, on humanitarian and compassionate grounds, seeking the within Canada processing of his sponsored permanent residence request.
[3] The applicant argues he has a constitutional right to have a risk assessment conducted before his removal order relying on the Federal Court of Appeal's decision in Farhadi v. Canada (M.C.I.), 257 N.R. 158 (F.C.A.), Suresh v. Canada (M.C.I.), [2000] 2 F.C. 592 and Man v. Canada (M.C.I.), [2001] 3 F.C. 629 (F.C.T.D.).
BACKGROUND
[4] The applicant is a citizen of Jamaica who came to this country on June 10, 1993, as a visitor with a three-month visitor's visa.
[5] On July 23, 1996, he married Dawn Marie Smith, a Canadian citizen.
[6] On June 25, 1999, he filed a request for permanent residence in Canada and sought an exemption under section 114 of the Immigration Act (the "Act") which would enable its processing within Canada. In that application, he made no allegations of risks should he return to Jamaica.
[7] He was interviewed in connection with his application and answered "no" to a question put to him by an immigration officer who asked "If you have to return, do you think that you will have some problems?"
[8] On September 28, 2000, his H & C application was denied and he did not seek leave of the Court to institute judicial review proceedings.
[9] He was told to report on October 12, 2000 which he did and, at that time, informed the immigration officer he was applying for refugee status based on the fact he had witnessed a murder in 1989 before leaving Jamaica and those who had committed the crime were constantly threatening his life should he come back.
[10] The Refugee Division rejected his claim on June 18, 2001 and, in brief reasons wrote this:
The testimony reveals that the claimant filed for refugee status on October 13, 2000, after all his effort to obtain a landed immigrant status in Canada through marriage failed.
With respect to his refugee claim, his testimony reveals that he fears the widespread violence in Jamaica and in particular, the Eastern Kingston gunmen, which he described as criminals, whose activities he would have witnessed in 1989.
The Tribunal concludes that the fear expressed is of a criminal nature and has no nexus with any of the five Convention grounds.
[11] The applicant sought leave from this Court to challenge the Refugee Division's decision but his leave application was dismissed by a judge of a Federal Court because he failed to produce his applicant's record on time. In addition, his PDRCC application of July 16, 2001 was turned down on August 8, 2001, because it was filed too late and there is no mechanism in the Immigration Regulations to extend time.
[12] On September 18, 2001, the applicant met with André Martel who was given the responsibility to make arrangements for his removal to Jamaica. The applicant agreed to leave for Jamaica and offered to pay for his travel expenses.
[13] On October 22, 2001, the applicant, this time accompanied by his legal counsel, again met with Mr. Martel. Mr. Martel was informed that a second request for permanent residence on humanitarian grounds had just been filed and that it contained allegations of risk.
[14] A copy of the applicant's H & C application was given to Mr. Martel who asked Cathy Chan, a local expertise officer at the Hearings and Removals Section of the Department of Citizenship and Immigration (hereinafter "CIC").
[15] In an affidavit filed by the respondent opposing the applicant's stay motion, Cathy Chan deposed she examined the applicant's file and his H & C application concluding there were not sufficient elements in his file which would justify deferring his removal. She added, in particular, the applicant had waited several years before making known his alleged risk of return which he had been aware of since 1989. She provided that advice to Mr. Martel who informed the applicant and his legal counsel the H & C application would not be reviewed before his removal to Jamaica.
[16] On October 31, 2001, the applicant's counsel forwarded an urgent communication to Carole Lamarre at the CIC's Hearings & Removals Section in Montreal requesting the applicant not be removed until a risk evaluation had been conducted. He argued the applicant's outstanding H & C application sent to Vegreville, Alberta, on October 19, 2001, was based on risk of return and the application was his first evidence on the point.
[17] On November 1, 2001, Cathy Chan responded to the communication sent to Carole Lamarre. She wrote this to the applicant's counsel:
The Immigration Act does not impose us to study a request for 114(2) (humanitarian grounds) at the last minute prior to proceeding with removal. The act of deposing such a request does not constitute an impediment to removal and does not grant a stay of removal.
However, a removal before the evaluation of a request for 114(2) does not release our obligation to study the application. In the case of a positive evaluation, the applicant will be authorized to return to Canada.
As it has already been stated earlier, there are not enough elements in this case to defer removal.
[18] Cathy Chan referred the applicant's legal counsel to Justice Dubé's decision in Maharaj v. Canada (M.C.I.), [2001] F.C.T. 509.
ANALYSIS AND CONCLUSIONS
[19] I accept, as a general proposition, the obligation, based on Farhadi, supra, of the necessity of conducting a risk assessment and making a determination before removal. Also, for the purposes of argument, I assume the risk alleged need not be related to one of the five Convention grounds.
[20] Counsel for the applicant premised his stay application on the ground the removal officer refused to examine the applicant's risk of return when he had a legal obligation to do so before effecting removal, an obligation not dimmed by any negative credibility findings of the Refugee Division relying on Ali Ahmed et al. v. Canada, IMM-5330-99, August 30, 2000 (F.C.T.D.).
[21] In my view, the facts of this case do not support counsel for the applicant's assertion CIC did not look at the applicant's allegations related to his risk of return.
[22] It is clear from the record, after CIC received on October 22, 2001, the applicant's second application for permanent residence in Canada based on H & C grounds which, for the first time, raised his fear of return to Jamaica, that Cathy Chan examined his entire file reaching the view the applicant had not made out a sufficiently strong case to warrant deferral because of his alleged risks. Her affidavit discloses she discounted the alleged risk because of the applicant's past behaviour.
[23] Cathy Chan relied on Justice Dubé's decision in Maharaj, supra, quoting to counsel for the applicant the following extract in his reasons for judgment:
In the instance case, under the circumstances, there is no indication that the refusal of the removal officer to defer the departure of the applicant was not reasonable. This Court has on numerous occasions emphasized that persons who failed to allege a risk at earlier appropriate junctures cannot expect the removal officer to set aside his travelling arrangements so as to conduct a quick risk assessment before executing the duty imposed upon him by the Act. In my view, a removal officer may only entertain such an application where the alleged risk is obvious, very serious and could not have been raised earlier. [emphasis mine]
[24] In my view, there were ample facts in the record upon which Cathy Chan could reasonably arrive at the conclusion the applicant had not made out a sufficiently strong case to warrant deferral even though he had never returned to Jamaica since arriving in Canada.
[25] I agree with counsel for the respondent this case is far removed from the factual circumstances in Farhadi and Suresh, supra. Man, supra, was a judicial review, not a stay application, and it was based on a finding of a risk assessment not having been carried out.
[26] On this basis, this stay application must be dismissed.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
NOVEMBER 27, 2001