Federal Court Decisions

     IMM-15-97

IN THE MATTER of the Immigration Act, R.S.C. 1985, c. I-2, s. 82.1 and amendments and regulations thereto;

AND IN THE MATTER OF the execution of a deportation order made against the applicant herein on the 13th day of February, 1996 pursuant to subsections 27(2)(a) and 32(6) of the Immigration Act.

BETWEEN :

     PATRICK FRANCIS WARD

     Applicant

     - and -

     MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

     Delivered orally by teleconference on January 7, 1997

     (Revised as to form)

JOYAL J.

     This is an application for a stay of execution of a deportation order removing the applicant to London, England on January 8, 1997 at 10:30 p.m., pending the judicial review of the execution of the said deportation order.

     The most striking thing about this applicant is the sheer extent of the judicial consideration which his case has received. The applicant is a citizen of Ireland and the United Kingdom. He had been a member of the terrorist group, the Irish National Liberation Army ("INLA"), and subsequently had a serious falling out with them, involving threats of brutal reprisals. He served a three-year sentence for criminal activity and upon his release in December 1985, he came to Canada and immediately made a claim for refugee status. On December 2, 1988, the Convention Refugee Determination Division ("the CRDD") of the Immigration and Refugee Board determined that the applicant was a Convention refugee. On appeal to the Federal Court of Appeal, this decision was set aside on March 5, 1990. On June 30, 1993, the Supreme Court of Canada reversed the decision of the Federal Court of Appeal, arriving at the same result for different reasons. The matter was referred back to the CRDD for a rehearing to consider the proper criteria.

     The new hearing was held on May 3, 1994, and on September 29, 1994, the CRDD decided that the applicant could seek refuge in England and thus ruled that he was not a Convention refugee. On February 1, 1995, my colleague Cullen J. dismissed the application for leave to commence judicial review proceedings with respect to that decision. The applicant then moved to have the claim reheard by the CRDD, but on October 13, 1995, this was denied. On February 13, 1996, an adjudicator ordered the applicant's deportation.

     On August 12, 1996, a Post Claims Determination Officer concluded that there was no evidence that the applicant's alleged enemies continue to be interested in him or his family, as they had known where the applicant resided, yet had never approached or contacted him. Since there was no objectively identifiable risk to the applicant on his return to England, the applicant was found not to be a member of the Post-Determination Refugee Claimants in Canada ("PDRCC") class.

     The applicant's removal from Canada was set for September 11, 1996. On August 26, 1996, my colleague McGillis J. granted leave to judicially review the deportation order. The applicant also filed an application for leave to judicially review the PDRCC decision. On September 9, 1996, Cullen J. ordered a stay of execution of the deportation order pending determination of the applications for judicial review of the PDRCC decision and of the deportation order itself. On November 13, 1996, McGillis J. refused leave to judicially review the PDRCC decision. Finally, on December 19, 1996, Heald D.J. heard the judicial review of the deportation order on its merits and dismissed it.

     On January 2, 1997, the applicant filed an application for leave to judicially review the decision to execute the deportation order on the grounds that it infringed sections 7 and 12 of the Charter. On that same date, he filed the present motion to obtain a stay of the execution of the deportation order pending a final determination of that judicial review application.

     After an even dozen appearances by the applicant before various courts and tribunals, I believe it is safe to say that no stone which might possibly be beneficial to him has been left unturned. That is to say, any arguments which the applicant may have had in support of his claim to stay in Canada or to avoid being removed to England have been aired at this point.

     Nevertheless, I have no doubt that the applicant's fear of being returned to England is very real to him and so I prefer not to dismiss this case on purely procedural grounds. Thus, I will consider the three elements of the test for issuing a stay set out in the Supreme Court decision in Manitoba (A.G.) v. Metropolitan Stores¹, as well as that of the Federal Court of Appeal in Toth v. Canada (M.E.I.)². On such an application with respect to a deportation order, this Court must consider whether there is a serious issue to be tried, whether the applicant will suffer irreparable harm if the deportation is carried out, and which outcome the balance of convenience favours.

     With respect to the serious issue to be tried, I am not convinced that the chances of success are so benignly in favour of the applicant that I should grant an order which would have the effect not only of staying the deportation, but at the same time of rendering moot the judicial review proceedings for which the stay is sought.

     Even if I had a more positive view of the chances of success of the judicial review application, I am satisfied that the applicant will suffer no irreparable harm by reason of his being returned to England. The harm which the applicant claims will befall him is speculative at best and, in any case, not supported by objective evidence to justify the fear which he has expressed. The material which he has filed paints a threatening image of Ireland. However, the references to England in this material suggest that the situation there is not nearly as explosive.

     I note parenthetically that on the evidence presented, it would seem that many of the people who knew and threatened the applicant prior to his fleeing to Canada some 12 years ago have since been executed or killed. I do not cite this as particularly relevant evidence, but mention it simply because it supports the view expressed by the Post Determination Claims Officer that the applicant faces no objective risk of harm on his return since his persecutors have known of his location for over a decade and have attempted no reprisals. I do not find that there is any objective risk upon his return to England which is greater than that under which he has been living for years here in Canada.

     As for the applicant's corollary application for judicial review, this Court has often explained that his leaving the country does not constitute irreparable harm to the application. Applicant's counsel is free to pursue it, receiving evidence and instructions from the client in England. Should the application prove successful, the applicant is entitled to the cost of his return travel.

     Accordingly, I conclude that the applicant will suffer no irreparable harm from the execution of the deportation order on January 8, 1997. In light of this conclusion, I need not consider the third criterion of the Toth test, the balance of convenience.

     As a final note, I would mention that the Canadian system of immigration is one of the most careful in the world. There are a phenomenal number of layers of debate available to the refugee claimant who seeks asylum on our shores. Thanks undoubtedly to extremely persistent and able counsel, the present applicant seems to have availed himself of every one of them. I am satisfied that counsel's diligent efforts have effectively sounded out all of his client's rights and, in the unlikely event that anything has still been overlooked, he is free to continue to pursue them.

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     In the circumstances, the application for a stay must be dismissed. So went my Order dated January 7, 1997.

     L. Marcel Joyal

     ___________________

     J U D G E

O T T A W A, Ontario

January 24, 1997.

__________________

¹      [1987] 1 S.C.R. 110.

²      (1988) 86 N.R. 302; 6 Imm.L.R. (2d) 123.