Date: 20001013
Docket: IMM-5213-00
BETWEEN:
ARKADIY BYKOV
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY, J.:
[1] These are brief reasons explaining my dismissal of an application to stay removal of the applicant from Canada, heard on Wednesday, October 4, 2000, only two or three hours before scheduled departure of the applicant in accord with a removal order issued against him.
[2] When an application for leave for judicial review was filed earlier that day together with an application for an order to stay proceedings in execution of the removal order against the applicant, the application for leave before the Court concerned a decision of an immigration officer to carry out the applicant's removal from Canada despite the failure of the respondent to determine an application under s-s. 114(2) of the Immigration Act which sought, on humanitarian and compassionate grounds, landing of the applicant from within Canada if he were otherwise qualified, based on the risk of danger to him if he were returned to Russia.
[3] By the time the matter was heard the applicant had been interviewed in connection with his humanitarian and compassionate application and an immigration officer had advised him, after the interview, that his application under s-s. 114(2) was refused.
[4] Thereupon counsel filed an application for leave and for judicial review in relation to the decision made on his humanitarian and compassionate application, an application that was before me by fax copy when the stay application was heard by telephone.
[5] The matter came on with such short notice that there was no opportunity for the respondent to reply with written materials but counsel was available, with instructions, and opposed the application for a stay of removal.
[6] After hearing counsel for both of the parties, and considering the applicant's claim to fear danger if he were returned to Russia, as had been arranged for his removal, and considering the respondent's preliminary submission that the application not be considered since it was filed so late and without fair opportunity to respond, I concluded that the application should be dismissed on the merits of the evidence before me.
[7] The applicant claims to be a deserter from the Russian Army and to fear the consequences of his return to Russia where, on the basis of reported treatment of others in his circumstances, he anticipates detention in inhumane conditions or return to the army, with renewed inhumane treatment of the sort he had run away from some ten years earlier. That treatment he attributed to the fact that he was a member of an ethnic and religious minority in the then Soviet Union, being a Christian hailing from what is now the Republic of Chuvasia. That concern had been the basis of his fear of persecution in relation to his claim for refugee status, considered but denied by the C.R.D.D. in July 1998. His application for leave was granted and judicial review of that decision was heard but the application was refused on September 22, 1999.
[8] He claims to have learned of that decision only in August 2000 when he was asked to report to the Immigration Centre in Montreal later that month.
[9] Immigration officers seeking to arrange for his removal arrested him on September 22, 2000, and thereafter he was held in detention. Counsel completed and submitted on his behalf on September 27, 2000, his application on humanitarian and compassionate grounds pursuant to s-s. 114(2). On September 29 he was advised that he would be removed from Canada on October 4. Late in the afternoon of October 3 he was advised that he would be interviewed by an immigration officer on the following morning in relation to his humanitarian and compassionate application. That interview was to be with an interpreter of the Russian language even though his comprehension of Russian and his ability to speak it are said to be limited to about 70 per cent in regular conversation. That interview was held and the decision subsequently made to deny his s-s. 114(2) application before the matter came on for hearing before me.
[10] In the circumstances as outlined by counsel I was prepared to accept that there was a serious issue raised by the application for leave and for judicial review filed on October 4 in relation to the decision on humanitarian and compassionate grounds. I was not, however, persuaded that in the circumstances there was evidence the applicant would suffer irreparable harm between now and the time the application for leave and for judicial review will be determined. The basis of his claim to irreparable harm is set out in the following terms in his affidavit in support of the application for a stay:
| 48. If I am returned to Russia, I will face either long periods of imprisonment in a Russian jail where brutality and torture are rampant, or be returned to finish my service where I will be force [sic] to undergo the same treatment from which I fled. I am also afraid that I will be sent to the Chechen front and face the same treatment that I did when I was in the army previously or worse. |
[11] I note that his evidence was not found to be credible by the C.R.D.D. panel which considered his refugee application. I note also that the same grounds were advanced as a basis of his claimed risk factor in connection with his humanitarian and compassionate application and while decision on that was not before me the officer must not have been persuaded that the applicant had established compassionate or humanitarian grounds related to his feared risk that would warrant his landing from within Canada. I note that the application before the Court does not question the validity of the deportation order under which the respondent's officers acted.
[12] In these circumstances, I did not find there was irreparable harm established by the applicant either in the traditional sense or in the sense as counsel suggested, that the Court's relief, should it be awarded following judicial review, would be moot because it would be ineffective. In my opinion, that conclusion could only be speculative based on the assumption that the risk feared by the applicant would in fact occur. On the basis of the evidence before me whether that would occur was simply a matter of speculation at this stage.
[13] In these circumstances, I was not prepared to grant the application for a stay of the applicant's removal order and the motion for the stay was dismissed.
(signed) W. Andrew MacKay
JUDGE
OTTAWA, ONTARIO
October 13, 2000