Date: 20030801
Docket: IMM-3612-03
Ottawa, Ontario, this 1st day of August, 2003
Present: The Honourable Mr. Justice MacKay
BETWEEN:
EZZEDDIN AHMED SHUGHAGHA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] These are reasons for an order staying the removal of the applicant Ezzeddin Ahmed Shughagha pursuant to a departure order issued May 9, 2003. The stay was issued May 22, 2003.
[2] The applicant is a citizen of Libya, and has been living in Canada since November 1996. While living in Libya, the applicant became involved with Al-Sawha of Islam, a group that is concerned with politics and religion. The applicant claims to have been arrested, shot and detained a number of times by the Libyan police as a result of his participation with Al-Sawha.
[3] In 1997, the applicant made a claim for Convention refugee status that was denied by a Refugee Board in 1998. An application for judicial review for this decision was denied leave by the Federal Court Trial division.
[4] A Departure Order for the applicant was issued by the Minister of Citizenship and Immigration on February 22, 1999. The applicant then applied for an assessment as a member of the Post-Determination Refugee Claims in Canada class. No determination was ever made before the Immigrant and Refugee Protection Act, S.C. 2001, c. 27, came into force on June 28, 2002. Under this act, the applicant was eligible to make an application for a Pre-Removal Risk Assessment ("PRRA"). The applicant was advised of this by letter on September 20, 2002.
[5] The applicant received his negative decision on his PRRA application in person in the Calgary office of Citizenship and Immigration Canada on May 9, 2003. His passport was seized at that time, and he was taken into custody as the Immigration Officer concluded Mr. Shughagha would not report as directed for his removal on May 21, 2003. He was released following a Detention Review hearing on May 12, 2003.
[6] The relevant test for the Court to consider when assessing a motion for a stay is the tri-partite test from Toth v. Canada (M.E.I.) (1988), 86 N.R. 302 (F.C.A.). This requires the Court to determine that there is a serious issue to be tried in an underlying proceeding; that the party seeking the stay would suffer irreparable harm if the stay was not granted and the underlying proceeding should later be determined in his favour, and that the balance of convenience for the parties favours the stay. All three elements must be found for a stay to be granted.
Serious Issue
[7] The applicant submitted that the serious issue involved in this case relates to the applicant's PRRA assessment, which he contends was not adequately considered by the Officer. Moreover, he argues that the delay of the respondent in assessing his PDRCC claim, requiring it to be continued as a PRRA under the IRPA, constituted a deprivation of rights that amounts to a serious issue to be addressed in the courts through judicial review.
[8] The applicant's application for leave for judicial review, which provided narrower grounds for risk assessment of the PRRA decision, is currently before this court. In my opinion, that application raises a serious issue being before this Court, supporting the stay.
Irreparable Harm
[9] In Melo v. Canada (M.C.I.), [2000] F.C.J. No. 403 (F.C.T.D.), Mr. Justice Pelletier described"irreparable harm" as:
Some prejudice beyond that which is inherent in the notion of deportation itself. To be deported is to lose your job, to be separated from familiar places and people. It is accompanied by enforced separation and heartbreak. Similarly, disruption of education does not constitute irreparable harm in itself.
The applicant outlined the harm he fears if he is returned to Libya by saying he fears that he would again be the target of torture, persecution or risk to his life from the Libyan government based on his political activities in Libya before 1996.
[10] To amount to irreparable harm, the applicant needs to demonstrate that the harm is more than a mere possibility. The applicant failed to demonstrate that despite his long stay in Canada, in light of his lack of participation in the Al-Sawha of Islam group while here, the Libyan government would be interested in him upon his return. In my opinion the applicant's stated fear raises only a mere possibility of persecution if he were to return.
[11] Nevertheless, in light of the serious issue raised, not yet determined, that he has suffered harm from the administrative delay in dealing with his PDRCC status, and the ultimate assessment as a PRRA under IPRA, if those circumstances adversely affected his chances of a positive outcome, that delay, and the resulting lack of fairness would, in my opinion, amount to irreparable harm, if the stay sought were not granted and the serious issue raised by his application for judicial review were to be determined in his favour.
Balance of Convenience
[12] Both parties agree that the public interest must be taken into account when measuring the balance of convenience before granting a stay. The respondent urges that in this case, that means executing removal orders expeditiously. However, with a serious issue to be determined through the applicant's application for leave and judicial review of his PRRA assessment, and the likelihood of irreparable harm to the applicant in the absence of a stay, I find that the balance of convenience favours the applicant.
Conclusion
[13] For the reasons set out, this motion for a stay of removal is granted.
"W. Andrew MacKay"
JUDGE
OTTAWA, Ontario
August 1, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3612-03
STYLE OF CAUSE: EZZEDDIN AHMED SHUGHAGHA
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: May 20, 2003
REASONS FOR ORDER OF: MacKAY, J.
APPEARANCES:
Michael D. Loken
FOR APPLICANT
Carrie Sharpe
FOR RESPONDENT
SOLICITORS OF RECORD:
Michael D. Loken
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT