Date: 20011213
Docket: IMM-5373-01
Neutral citation: 2001 FCT 1367
BETWEEN:
ZAKARIA HAMZA
Applicant
AND:
THE MINISTER OF CITIZENSHIP AMD IMMIGRATION
Respondent
(Delivered orally from the bench at Montréal
on Monday, November 26, 2001)
[1] On an urgent motion returnable in Montréal on November 26, 2001, and for reasons given orally, I granted a stay of execution of the removal of the applicant, a citizen of Tunisia, scheduled for today at 4:30 p.m. The Immigration officer's decision not to defer execution of the applicant's removal was communicated to his legal representative on November 20, 2001. These reasons reflect the gist of the oral reasons for the stay order.
[2] The applicant's application for leave and judicial review was based on two points:
(1) an assessment of the risk involved in the applicant returning to Tunisia, apparently completed but the content of which had not been disclosed to the applicant, and this did not allow him to make comments thereon; and
(2) no decision has been made on an application for a visa exemption under s. 114(2) of the Immigration Act ("the Act") sponsored by his wife.
[3] Mr. Hamza entered Canada in January 1999 with a six-month visa which was renewed once.
[4] After an unsuccessful attempt at an application for landing sponsored by his wife (his representative at the time did not send the application to the Department of Immigration and Citizenship - "CIC"), the applicant went to his first meeting with the CIC officer in May 2001. That is when, he said in his affidavit filed in support of his stay application, he told the CIC officer [TRANSLATION] "about my family situation and the reasons why I feared returning to Tunisia and could not leave Canada".
[5] He related the following facts in his affidavit, on which he was not cross-examined or contradicted by an affidavit of the respondent:
[TRANSLATION]
16. As the CIC officer Mr. Dubreuilh told me so, I sincerely believe that he checked by telephone with my lawyer in Tunisia, who confirmed the fact that the Tunisian authorities actually had a file on me;
17. Consequently, as the CIC officer Mr. Dubreuilh told me so, I sincerely believe that information requests were filed by the CIC with the Canadian Embassy and other sources about the risks I was alleging;
18. As I had been told that the CIC was proceeding with these inquiries I did not appear for the removal scheduled for May 31, 2001 but checked with the CIC in writing before May 31, 2001, and remained in contact with the CIC after May 31, 2001;
19. I have never changed my address from that time to date;
20. I was entitled to expect that the CIC would inform me of the result of their inquiries and decision to authorize me to remain in Canada because of these risks;
21. On November 8, 2001 I was arrested at home without any prior summons or notice;
22. On the same date, November 8, 2001, in the presence of my current counsel, I was for the first time told verbally that an opinion/assessment of the risks had been completed and that the CIC considered I could be deported without any risk;
23. On November 8, 2001 I asked for a copy of this opinion/assessment but my request was refused by the removal officer, who asked me to make an application under the Privacy Act;
24. The officer only agreed to give me verbally and hastily certain extracts from the file which I was shown, but not the opinion;
25. The officer was then told that we wanted to have this opinion in order to make the necessary representations to the CIC and/or take the necessary action to oppose the removal and/or on humanitarian grounds;
. . . . .
29. Among the bits and pieces disclosed by the Officer Salvatore d'Aloiha I sincerely believe that one of the information requests made by the CIC is still unanswered and that the opinion was regarded as finalized in spite of that;
30. I need disclosure of the risk assessment in order to frame replies, corrections and inquiries on the results and the CIC file;
31. I do not know when or how this assessment was made concerning me . . .
[6] In view of these undisputed facts submitted by the applicant, corroborated in part by his wife's affidavit, the conditions necessary for granting a stay (serious grounds, irreparable harm and balance of convenience) are met.
[7] Farhadi v. Canada (Minister of Employment and Immigration), [2000] F.C.J. 646, laid down the rule that a risk assessment is a condition precedent to carrying out a removal. Further, Haghighi v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 407, held that natural justice or procedural fairness requires that the party in question be fully informed of a risk assessment report so the latter can be permitted to make his or her comments thereon. Consequently, the application for leave and judicial review raises serious questions.
[8] In my opinion, irreparable harm has been demonstrated since the applicant alleged that his life and freedom were in danger and his bodily security threatened by the torture practised by Tunisian authorities.
[9] In the circumstances, it follows that the balance of convenience favours the applicant.
[10] I mentioned to the parties that the stay was being granted only for the reason relating to the risk involved in the applicant returning to Tunisia, and I was not in any way accepting the second reason put forward, namely the existence of an extant exemption application.
[11] This Court's decisions on this point have been consistent. The filing of an exemption application on humanitarian grounds, particularly a belated application as in the case at bar, is not as such a bar to the Minister carrying out the removal order.
[12] One further observation is necessary. A judge of this Court will have to decide whether to authorize the judicial review. In this situation, it will be up to the applicant to present evidence to offset the facts which were before me at the urgent hearing on the stay application.
[13] For all these reasons, a stay is granted until the application for leave is decided.
| François Lemieux JUDGE |
Ottawa, Ontario
December 13, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-5373-01
STYLE OF CAUSE: ZAKARIA HAMZA v. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: NOVEMBER 26, 2001
REASONS FOR ORDER BY: LEMIEUX J.
DATED: DECEMBER 13, 2001
APPEARANCES:
Johanne Doyon FOR THE APPLICANT
Michel Pépin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Johanne Doyon FOR THE APPLICANT
Doyon & Montbriand
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada