Date: 20040528
Docket: IMM-4542-04
Citation: 2004 FC 790
Ottawa, Ontario, this 28th day of May, 2004
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
MAZA HAILU
Applicant
- and -
THE SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is a motion by Maza Hailu (the "applicant") for an order staying her removal from Canada to Ethiopia, which is scheduled for June 1, 2004 at 12:50 p.m.
[2] The applicant is a citizen of Ethiopia who arrived in Canada on July 3, 2001. She made a Convention refugee claim which was denied and no judicial review of the denial was instituted as she could not afford a lawyer.
[3] The applicant is of mixed Ethiopian and Eritrean origin, as her father is of Eritrean ethnicity and her mother is Ethiopian.
[4] The applicant's father was accused of being a spy and was deported from Ethiopia to Eritrea. Shortly thereafter, the applicant alleges that she too was deported to Eritrea.
[5] The applicant's father made arrangements for the applicant to go to Kenya, from where she eventually made her way to Canada.
[6] The applicant states that had she stayed in Eritrea, she would have been conscripted into the army to fight against her fellow Ethiopians.
[7] The applicant's first Pre-Removal Risk Assessment ("PRRA") was submitted on December 12, 2002. The applicant submitted that she was at risk if returned to Ethiopia and would suffer punishment if not death as a result of her father being a suspected spy for the Ethiopian government and because of being female in a country with a poor human rights record in relation to women. This first application was denied on August 20, 2003 and she was scheduled for removal from Canada on December 9, 2003.
[8] In December 2003, the applicant was admitted to hospital and diagnosed with a "Major Affective Disorder - depressed-psychotic, Adjustment Disorder with Disturbance of Mood and Behaviour".
[9] The applicant was discharged from hospital on December 31, 2003, but was readmitted on January 7, 2004 and then discharged again on January 26, 2004.
[10] Her psychiatrist states that the issue of deportation is linked to her psychiatric presentation. As well, her psychiatrist states that she would end up in Ethiopia in a psychotic state and would remain so for an extended period of time. The psychiatrist also suspects she would have difficulty obtaining appropriate psychiatric care in Ethiopia. The psychiatrist states that the applicant informed him that she was exposed to physical abuse and threats of sexual violation when she was detained prior to her escape.
[11] The applicant submitted a subsequent PRRA application on February 10, 2004 which included her psychiatrist's reports and her birth certificate which showed that her father is of Eritrean nationality and her mother is of Ethiopian nationality.
[12] The applicant was arrested and detained when she appeared for her pre-removal hearing but she was released on conditions at her 48 hour immigration detention review hearing.
[13] The applicant submitted a humanitarian and compassionate ("H & C") application on May 10, 2004.
[14] The applicant's subsequent PRRA application has not yet been decided.
[15] There is only one psychiatric hospital in Ethiopia to deal with about three million people with mental disorders.
[16] The applicant states that her life would be in danger if she returned to Ethiopia. The applicant has lost all contact with her family members and does not know if they are still alive.
[17] The applicant has filed for leave for judicial review and judicial review of the decision of the immigration officer dated May 10, 2004 to execute the removal order.
Issue
[18] Should the removal of the applicant be stayed?
Analysis and Decision
[19] It is now accepted that an immigration 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).
[20] 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. 302 (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 an order, that the applicant demonstrate, firstly, that he has raised a serious issue to be tried; secondly, that he would suffer irreparable harm if no 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.
[21] Serious Issue
I am satisfied that the applicant has raised a serious issue and that serious issue is whether
or not there is any duty on the respondent to review, in any manner, a subsequent PRRA application filed pursuant to Regulation 165 of the Immigration and Refugee Protection Regulations, S.O.R./2002-227, prior to the execution of a removal order.
[22] Irreparable Harm
I am of the view that the discontinuance of the psychiatric treatment by Dr. Armstrong at the present time would cause irreparable harm to the applicant. Her removal at the present time, according to Dr. Armstrong, would cause her to regress into a depressed and psychotic state.
[23] Balance of Convenience
The balance of convenience favours the applicant. She is not a security risk nor a danger to the public. She has no criminal record. Although the respondent is under a duty to carry out a removal order as soon as it is reasonably practical, I am of the view that this can be done later if the applicant is unsuccessful in her judicial review.
[24] The applicant's motion for a stay of her removal from Canada until the applicant's application for leave for judicial review is denied and if leave is granted, then the applicant's removal is stayed until the judicial review is finally disposed of by the Court.
ORDER
[25] IT IS ORDERED that the applicant's removal from Canada is stayed until the applicant's application for leave for judicial review is denied and if leave is granted, the
applicant's removal is stayed until the judicial review application is finally disposed of by the Court.
"John A. O'Keefe"
J.F.C.
Ottawa, Ontario
May 28, 2004
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4542-04
STYLE OF CAUSE: MAZA HAILU
- and -
THE SOLICITOR GENERAL OF CANADA
APPLICANTS' MOTION HEARD BY TELECONFERENCE IN OTTAWA
DATE OF HEARING: May 28, 2004
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
APPEARANCES:
Odaro Omonuwa
FOR APPLICANT
Kim Shane
FOR RESPONDENT
SOLICITORS OF RECORD:
Odaro Omonuwa
Winnipeg, Manitoba
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT