Date: 20040531
Docket: IMM-4281-04
Citation: 2004 FC 794
Toronto, Ontario, May 31st, 2004
Present: The Honourable Mr. Justice O'Keefe
BETWEEN:
ALANA ABIGAIL RIA JONES and
JAEL ARYANNE STACIE JONES CABEY
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is a motion by the applicants for an interim order staying the execution of the Removal Order made against the applicants pending the final disposition of their application for leave and for judicial review. The applicants are scheduled for removal to Trinidad and Tobago on June 1, 2004.
[2] The applicants are citizens of Trinidad and Tobago who arrived in Canada in 2002.
[3] The applicant Alana Abigail Ria Jones (the adult applicant) states that they came to Canada to escape from the father of her daughter. She states that he is involved in illegal drug activity and that he was arrested and released in a few days. The father of her daughter told her that he had paid a bribe to the police to be released and she states that he verbally threatened her with the use of his gun. The father also did not want his daughter, the other applicant, to attend school.
[4] When the adult applicant went to report the incidents at a police station she states the police told her she had to make the report at a police station located near the home of her daughter's father. As a result of this and his alleged relationship with the police she made no further reports to the police.
[5] The adult applicant applied for landing on humanitarian and compassionate grounds (H & C) on August 8, 2003 and that application is still outstanding.
[6] On November 25, 2003, the adult applicant requested that her temporary residence status be restored and this request was denied.
[7] As a result of the reports prepared by the respondent exclusion orders were issued against the applicants.
[8] The applicants made a Pre-Removal Risk Assessment (PRRA) on January 2, 2004 and this application was denied on or about April 30, 2004.
[9] The adult applicant has been a full-time student in Toronto under a study permit valid until March 2005 and is studying in the Community Worker program.
[10] The applicant applied for leave for judicial review of the PRRA Officer's decision.
Issue
[11] Should the removal of the applicants be stayed?
Analysis and Decision
[12] It is now accepted that an officer has some discretion and may, in certain circumstances, stay the removal of an applicant (see Wang v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 295 (QL), 2001 FCT 148).
[13] In order to obtain a stay, the applicant must satisfy the requirements set out in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 203 (F.C.A.), at page 305:
This Court, as well as other appellate courts have adopted the test for an interim injunction enunciated by the House of Lords in American Cyanamid Co. V. Ethicon Ltd., [1975] A.C. 396 .... As stated by Kerans J.A. in the Black case, supra:
The tri-partite test of Cyanamid requires, for the granting of such and order, that the applicant demonstrate, firstly, that he has raised a serious issue to be tried; secondly, that he would suffer irreparable harm if not order was granted; and thirdly that the balance of convenience considering the total situation of both parties favours the order.
The applicant must meet all three branches of the tri-partite test.
Serious Issue
[14] I am satisfied that the applicant has raised a serious issue which is: What is the standard of proof to be applied to the PRRA Officer's decision made under Section 97 of the Immigration and Refugee Protection Act, S.C. 2001, c.27? The law is not settled in this area and in Li v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1934 (F.C.) this issue was certified as a serious question of general importance.
Irreparable Harm
[15] The adult applicant stated that the father of her daughter, the other applicant, was involved in importing and exporting marijuana for which he was charged but was released on bail in few days. The adult applicant stated that he said he was released because of a bribe to an official. The father threatened the applicant with his gun and told her that he would not be held, because of his contacts, should she report him to the police. When the father was convicted in 2002 the applicant began receiving anonymous calls regarding the father's threats to both applicants. In my view the applicant has satisfied me that she would suffer irreparable harm if the stay order was not granted. Her daughter's father has threatened both of them and he has the means to carry out the threats. In my view there is on the facts of this case a serious likelihood of jeopardy to the applicants' safety.
Balance of Convenience
[16] The adult applicant is not a threat to the public or a security risk. She is enrolled in a Community Worker program as a full-time student at George Brown College under a study permit valid to March 2005. The applicant's daughter is 5 years old. I am of the view that the respondent can carry out his duty to remove the applicants as soon as reasonably practicable if and when the applicants are not successful in their judicial review.
[17] The respondent has suggested that the applicants would have adequate state protection if removed to Trinidad and Tobago and as a result the issue raised regarding the evidentiary threshold is academic. I am not satisfied, based on the facts currently before me on this motion, that the applicants have the benefit of adequate state protection.
[18] The applicants' motion for a stay of their removal to Trinidad and Tobago pending the final disposition of their application for leave and for judicial review is granted.
[19] At the respondent's request the style of cause is amended by removing the "Minister of Citizenship and Immigration" as a respondent and by adding the "Solicitor General of Canada" as a respondent.
ORDER
IT IS ORDERED THAT:
1. The removal of the applicants from Canada to Trinidad and Tobago is stayed until the applicants' leave for judicial review is dismissed and if leave is granted the removal is stayed until the applicants' judicial review application is finally determined by the Court.
2. The style of cause is amended by removing the "Minister of Citizenship and Immigration" as a respondent and adding the "Solicitor General of Canada" as a respondent.
"John A. O'Keefe"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-4281-04
STYLE OF CAUSE: ALANA ABIGAIL RIA JONES and
JAEL ARYANNE STACIE JONES CABEY
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MAY 31, 2004
REASONS FOR
ORDER AND ORDER BY: O'KEEFE J.
APPEARANCES BY: Mr. Douglas Lehrer
For the Applicant
Ms. Anshumala Juyal
For the Respondent
SOLICITORS OF RECORD: VanderVennen Lehrer
Toronto, Ontario
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT
Date: 20040531
Docket: IMM-4281-04
BETWEEN:
ALANA ABIGAIL RIA JONES and
JAEL ARYANNE STACIE JONES CABEY
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER