Federal Court Decisions

Date: 20061018

Docket: IMM-5310-06

Citation: 2006 FC 1250

Toronto, Ontario, October 18, 2006

PRESENT:     The Honourable Mr. Justice Harrington

BETWEEN:

LEILA BREHELIA TRIMMINGHAM BROWN

OMAR TRIMMINGHAM

Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1]               The applicants, mother and child, have been directed to report for removal to their native St. Vincent and the Grenadines. Their pre-removal risk assessment (PRRA) determined that they would not be subject to risk of persecution, danger of torture, risk to life or risk of cruel and unusual treatment or punishment if returned there. They have filed an application for leave and for judicial review of that decision and in the interim have moved the Court for an order staying their removal.

[2]               Ms. Brown was in a very abusive relationship with her son’s father. So much so that she and her son, Omar, fled to Canada. Her common-law spouse followed her and they reconciled for a while. However, he again became abusive. She obtained a restraining order. He was charged, convicted, jailed and later deported to St. Vincent. The PRRA officer found Ms. Brown to be credible. There is no question that she is at risk if returned to St. Vincent. The question on judicial review, should it come to that, is whether there is state protection (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689). However, and despite the eloquent and tenacious submissions by counsel for both parties, that is not the issue before me. The question before me right now is whether the status quo should be preserved pending the outcome of that application for leave and for judicial review.

[3]               This Court has recently dealt with a number of domestic abuse cases from St. Vincent. I was practically invited to take judicial notice that while the authorities in St. Vincent may be willing, they are incapable of protecting victims of domestic abuse. This Court cannot take judicial notice of the factual situation in St. Vincent. Decisions such as Myle v. Canada (Minister of Citizenship and Immigration), 2006 FC 871, and Henry v. Canada (The Minister of Citizenship and Immigration), 2006 FC 1060 do not stand for that proposition. Country conditions, often compiled from various sources, are, at least to some extent, matters of opinion in terms of the material included, and in the manner in which they are presented. Other material may have been omitted or downplayed. The decision of the Refugee Protection Division of the Immigration and Refugee Board, although presented as a finding of fact, is also largely a matter of opinion. The Court must take into account the deference owed the IRB and determine whether that decision is outside the boundaries set by the pragmatic and functional approach to judicial review. Myle and Henry are not binding as to what the situation is in St. Vincent. They are based on the material in a particular file, including the claimant’s own history. As Mr. Justice Shore noted in Myle, each case turns on its own facts. The Minister argues this point strenuously since the record in this case as to country conditions is more recent than in Myle and Henry, and he submits that the situation has greatly improved.

[4]               However, this is an application for a stay, meaning that as per RJR - MacDonald v. Canada (Attorney General), [1994] 1 S.C.R. 311 and Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.), there are three issues which the claimant must overcome. The first is whether there is a serious underlying case on the merits, the second is irreparable harm, and the third is the balance of convenience.

[5]               As to the first issue, the general rule as per RJR – MacDonald, above, is that there is a serious underlying case if it is neither frivolous nor vexatious. This test is lower than that on whether leave should be granted, which is based on a fairly arguable case (Bains v. Canada (Minister of Citizenship and Immigration) (1990), 47 Admin. L.R. 317, 109 N.R. 239 (F.C.A.)), or whether judicial review should be granted which is based on the balance of probabilities that the decision-maker did not meet the appropriate standard of review.

[6]               In this case, I am satisfied that the applicants have met the serious issue test.  They have certainly raised the possibility that St. Vincent may not be capable of protecting them and that the decision-maker was over-selective in making a “good news” decision.

[7]               As to irreparable harm, pending disposal of the underlying applications, this is what Ms. Brown, who has been found credible, has said: “The last time I saw Oriel was June 10, 2004, he spent a total of four months in jail and in the detention centre and was deported back to St. Vincent. Although St. Vincent is in the Caribbean, he still found a way to send threatening words to me like

‘U bitch, you sent me to jail and you will pay.’ He said, ‘don’t forget you have a son down here, and when you get sent back, you are going to finished.’ He says ‘if you ever come back to St. Vincent ever, even if you wanted to visit, because I will be waiting.’” In RJR – MacDonald, above, the irreparable harm was the cost to tobacco companies of conforming with legislation that they were challenging on constitutional grounds. In Toth, above, the serious issue was also economic, the potential failure of a family business. That simply does not compare with Ms. Brown’s situation.

[8]               As noted in RJR – MacDonald, above, the test of balance of convenience was described by Mr. Justice Beetz in Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110 at paragraph 35 as “a determination of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits.” If a stay is granted, and the underlying application is dismissed, the inconvenience to the Minister is a slight delay in enforcing the removal. If a stay is not granted, and the underlying application is successful and a new hearing ordered, it may be moot as in the meantime Ms. Brown may have been murdered in St. Vincent.

[9]               For these reasons, a stay will be granted. RJR – MacDonald, above, makes the point that these decisions must be made quickly and on the basis of a very limited review of a limited record. A stay should not imply that leave for judicial review will be granted, or if so, that judicial review will also be granted.

ORDER

THIS COURT ORDERS that the removal of the applicants is stayed until the final disposition of the application for leave and for judicial review herein.

“Sean Harrington”

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          IMM-5310-06

STYLE OF CAUSE:                          Leila Brehelia Trimmingham Brown

                                                            Omar Trimmingham

                                                            v.

The Minister of Citizenship and Immigration

PLACE OF HEARING:                    Toronto, Ontario

DATE OF HEARING:                      October 16, 2006

REASONS FOR ORDER

AND ORDER:                                   HARRINGTON J.

DATED:                                             October 18, 2006

APPEARANCES:

SOLICITORS OF RECORD: