Date: 20041122
Docket: IMM-9458-04
Citation: 2004 FC 1627
BETWEEN:
Fatma Zohra KHEMIRI
Applicant
- and -
THE SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR ORDER
LEMIEUX J.
[1] The following are the reasons in support of the stay of execution of a removal order granted on Wednesday, November 17, 2004.
[2] The applicant is a citizen of Tunisia who fears the anger of her father, a conservative Moslem who would like to exact revenge from her because she was promised by him in marriage to a nephew and fled the family home to join her lover, who was studying in Montréal and whom she later married in 2003.
[3] Her application for a stay was accompanied by an application for leave and judicial review of a decision by a pre-removal risk assessment officer on September 10, 2004, which was given to her on November 2, 2004.
[4] A stay of a removal order is granted by this Court only if the applicant establishes the existence of three well-known conditions:
(1) a serious question to be tried;
(2) irreparable harm; and
(3) the balance of convenience.
[5] In RJR - Macdonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at 337, the Supreme Court of Canada wrote the following regarding the indicators of a serious question to be tried:
¶ 49 What then are the indicators of a "serious question to be tried"? There are no specific requirements which must be met in order to satisfy this test. The threshold is a low one. The judge on the application must make a preliminary assessment of the merits of the case . . .
¶ 50 Once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests, even if of the opinion that the plaintiff is unlikely to succeed at trial. A prolonged examination of the merits is generally neither necessary nor desirable.
[6] After hearing counsel for the parties at length, I feel that the applicant established the existence of the following serious questions:
(1) did the pre-removal risk assessment officer ignore significant documentary evidence filed by the applicant in support of her protection application, including the study titled [TRANSLATION] "Discrimination and Violence Against Women in Tunisia" (see Applicant's Record, page 64)?
(2) did the pre-removal risk assessment officer err in not assessing the contradictory evidence on protection by the Tunisian government of Tunisian women who were in a situation similar to that of the applicant?
(3) does the recent judgment of this Court in Cecilia v. Canada (Solicitor General), 2004 FC 1428, apply to the applicant's case?
(4) did the pre-removal risk assessment officer err by relying on the conclusions arrived at by a pre-removal risk assessment officer in the same case whose decision has been quashed by consent of both parties?
(5) did the pre-removal risk assessment officer require evidence beyond a simple balance of probabilities?
[7] On the second test, that of irreparable harm, I feel that the risk alleged by the applicant is that of a threat to her life or threats of violence she would suffer. Such evils constitute irreparable harm.
[8] As serious questions to be tried have been raised and irreparable harm established, the balance of convenience favours the applicant.
[9] For all these reasons, a stay of execution of the removal order against the applicant is granted, until there is a decision on the application for leave to seek judicial review, and if such leave is granted, until the application for judicial review in the case at bar is heard and decided.
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"François Lemieux"
Judge |
Ottawa, Ontario
November 22, 2004
Certified true translation
K.A. Harvey
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-9458-04
STYLE OF CAUSE: Fatma Zohra KHEMERI
-and-
The Solicitor General of Canada
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: November 17, 2004
REASONS FOR ORDER BY: The Honourable Mr. Justice Lemieux
DATED: November 22, 2004
APPEARANCES:
Sébastien Dubois FOR THE APPLICANT
Marie Nicole Moreau FOR THE RESPONDENT
SOLICITORS OF RECORD:
Saint-Pierre, Grenier, Attorneys FOR THE APPLICANT
Montréal, Quebec
Deputy Attorney General of Canada FOR THE RESPONDENT