Federal Court Decisions

Date: 20070207

Docket: IMM-7818-05

Citation: 2007 FC 144

Ottawa, Ontario, February 7, 2007

PRESENT:     The Honourable Mr. Justice Phelan

BETWEEN:

CANADIAN COUNCIL FOR REFUGEES,

CANADIAN COUNCIL OF CHURCHES,

AMNESTY INTERNATIONAL, and JOHN DOE

Applicants

and

HER MAJESTY THE QUEEN

Respondent

REASONS FOR INTERIM ORDER AND INTERIM ORDER

[1]               In the course of the argument of this judicial review, the Applicants brought a motion for an interlocutory injunction directing the Respondent to allow John Doe and his wife to enter Canada from the United States pending the determination on this judicial review or, alternatively, for an order restraining the Respondent from denying him or his wife entry into Canada.

[2]               The Applicants had brought a motion for a similar injunction in August 2006 before Justice Hughes. The learned judge dismissed that motion principally on the grounds that irreparable harm had not been established because John Doe had not exhausted available remedies in the United States, nor had he explained his failure to seek protection in other countries, nor had he provided sufficient evidence of risk in Columbia. As a result and given the strong presumption of the legitimacy of legislation, the balance of convenience favoured the Respondent. It must be remembered that John Doe lost his immigration case in the United States because in addition to not filing within one year, there was insufficient evidence of risk, specifically that John Doe had not been targeted by the anti-government group, FARC, but by criminals generally.

[3]               Since Justice Hughes’ ruling there have been some critical changes to John Doe’s situation. Firstly, he has now been arrested by U.S. authorities and his deportation to Columbia is imminent. Secondly, and more profoundly, there is new evidence of risk should John Doe be returned to Columbia.

[4]               The evidence is somewhat tentative but it suggests that members of FARC have continued to look for John Doe. Most telling is that in December John Doe’s brother was assaulted by people who were looking for John Doe. The brother made an official complaint to police about the incident and he has now disappeared. This is evidence that was not available to either Justice Hughes or to U.S. immigration decision-makers.

[5]               In addressing the tripartite test for an injunction, it is relatively easy to dispose of the first test of whether there is a serious issue. The two days of argument and the mounds of evidence and authorities speak to the very serious nature of the legal issues.

[6]               On the issue of irreparable harm, even recognizing the factual differences between this case and those in the Federal Court of Appeal’s decision in Suresh v. Canada (Minister of Citizenship and Immigration) (C.A.), [1999] 4 F.C. 206, Justice Robertson’s reasoning has relevance here:

No transgression of a basic human right can be accurately measured or compensated by money. This is particularly true in immigration cases involving deportation to a country which fails to abide by international norms respecting human rights.

…

Clearly, the issue of irreparable harm can be answered in one of two ways. The first involves an assessment of the risk of personal harm if a person is deported or deported to a particular country. The second involves an assessment of the effect of a denial of a stay application on a person’s right to have the merits of his or her case determined and to enjoy the benefits associated with a positive ruling.

[7]               While these words may well apply to John Doe, to some extent he is the maker (or contributor) of his own “mischief”. He has hidden from U.S. authorities after ordered to leave and he has failed to exhaust his legal remedies. In this regard I do not mean making blatantly useless motions just for the sake of proving the inevitable.

[8]               Given this new evidence, John Doe has not sought a stay of his deportation and a re-opening of his case on the grounds of what is arguably compelling evidence of risk.

[9]               In the face of this evidence, and without in any way presuming to speak to or for U.S. authorities, it is difficult to conceive that such authorities would not, at least, allow such a request for a stay and reconsideration to be entertained. Even the Respondent, quite rightly, accepted that this new evidence might have an impact on an U.S. immigration judge or the BIA.

[10]           As to the balance of convenience, that determination would be influenced by whether John Doe seeks to exhaust his legal remedies.

[11]           In addition, the Court remains concerned about the possibility of mootness. The Court is also concerned that, as advised by the Respondent’s counsel, if this motion was granted now and the Applicant came to Canada, Canadian authorities have 90 days in which to make an eligibility determination.

[12]           As a consequence, the Court will withhold pronouncing its decision on this injunction motion on condition that the Applicant John Doe seeks a stay of deportation and such other relief as may be necessary within seven days of this Order. The Court remains seized of this matter in the interim and counsel are to advise the Court of any such requests to U.S. authorities and the disposition thereof.

[13]           The existing Order of this Court issued earlier today but pronounced orally remains in effect as no determination on this request for an interlocutory injunction has been made.

[14]           The Court makes no order with respect to John Doe’s wife as there is no evidence of imminent risk.

INTERIM ORDER

            IT IS ORDERED that the decision on the interlocutory injunction application is deferred on the conditions stipulated in the Reasons. The current Order of February 7, 2007 remains in effect.

“Michael L. Phelan”

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          IMM-7818-05

STYLE OF CAUSE:                          CANADIAN COUNCIL FOR REFUGEES,

                                                            CANADIAN COUNCIL OF CHURCHES,

                                                            AMNESTY INTERNATIONAL and JOHN DOE

                                                            and

                                                            HER MAJESTY THE QUEEN

PLACE OF HEARING:                    Toronto, Ontario

DATE OF HEARING:                      February 5 and 6, 2007

REASONS FOR INTERIM

ORDER AND INTERIM

ORDER:                                            Phelan J.

DATED:                                             February 7, 2007

APPEARANCES:

SOLICITORS OF RECORD: