Date: 20011108
Docket: IMM-4709-01
Neutral Citation: 2001 FCT 1225
BETWEEN:
KADIATOU TRAORE
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] This is a motion to stay the execution of a removal order against the applicant that becomes effective on November 15, 2001. The motion is part of an application for leave and judicial review of the decision of Denise Couture, an immigration officer, dated June 20, 2001, in which the request for an exemption under subsection 114(2) of the Immigration Act (the "Act") was refused.
[2] In order to succeed, the applicant had to demonstrate that there was a serious issue to be tried, that she would suffer irreparable harm if she were deported to Mali, and that the balance of convenience was in her favour.
[3] Essentially, the immigration officer based her decision on the report of Maurice Groulx, the reviewing officer of refused refugee claims ("reviewing officer"), by adopting the decision of the reviewing officer with respect to the absence of any risks of return.
[4] With respect to the serious issue, the applicant argued that the assessment of the reviewing officer on the risks for the applicant in returning to Mali was not complete and was not based on relevant documents, still less on the specific present situation concerning the practice of excision within the family and in her native village. The applicant submits therefore that the immigration officer erred by finding that there were no risks in returning.
[5] A judge hearing an application for interlocutory relief cannot make a complete analysis of the record. In order to determine whether there is a "serious issue to be tried," the judge hearing the motion must make a preliminary assessment of the merits of the matter. The minimal requirements are not raised.
[6] On a preliminary review of the merits of the matter, I am satisfied that the applicant has raised a serious issue to be tried in this case and that this application is neither frivolous nor vexatious.
[7] With respect to the second test, that is, irreparable harm, I note the following passage in the reviewing officer's report:
[TRANSLATION]
Far be it from me to minimize the horror and sufferings that the majority of women in Mali must endure. Such practices are standard, despite the efforts of governments to eradicate the roots deeply entrenched in ancestral traditions, as in the Bambaras tribe, of which the claimant is a member, and in the Malinkas tribe, her cousin's tribe. If Ms. Traore were a young woman on the verge of getting married, as she claims, and she did not want this marriage and these mutilations, her application would probably have been considered favourably. However, she is 24 years of age, has already married and is divorced.
[8] The reviewing officer acknowledged that there would be a risk in returning if the applicant were a young woman on the verge of getting married, as she had claimed.
[9] If the reviewing officer erred in his weighing of the evidence and his finding that there was no merit in the applicant's claims that she would have to marry her cousin when she returned and might undergo excision, the risks in returning could therefore be genuine. This is an issue that should be examined in depth in judicial review of the decision of the immigration officer.
[10] I am satisfied that the applicant could suffer irreparable harm if she were deported to Mali.
[11] In conclusion, I have no hesitation in finding that in the circumstances the balance of convenience is in favour of the applicant.
[12] For all these reasons, the motion to stay the execution of the removal order is allowed.
[13] I order that this order remain in effect until the determination of the application for leave and for judicial review.
"Edmond P. Blanchard"
Judge
Montréal, Quebec
November 8, 2001
Certified true translation
Sophie Debbané, LL.B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20011108
Docket: IMM-4709-01
Between:
KADIATOU TRAORE
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4709-01
STYLE OF CAUSE: KADIATOU TRAORE
Applicant
and
MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: November 5, 2001
REASONS FOR ORDER AND ORDER OF BLANCHARD J.
DATED: November 8, 2001
APPEARANCES:
Serge Dumas FOR THE APPLICANT
Steve Bell FOR THE RESPONDENT
SOLICITORS OF RECORD:
Serge Dumas
Sainte-Foy, Quebec FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Montréal, Quebec FOR THE RESPONDENT