Shawesh v. Canada ( Minister of Citizenship and Immigration )
IMM-4845-99
Pelletier J.
12/11/99
10 pp.
Application to stay execution of removal order of two applicants, brother and sister, to Somalia, pending disposition of application for leave and judicial review of refusal of H & C application-Applicants born in Mogadishu and lived there 4 years until forced to flee with mother to Ethiopia following arrest of father-Remained there 12 years where learned Amharic and lost use of Somali-Entered Canada in 1992 and applied for refugee status-CRDD found applicants had not demonstrated they were nationals of Somalia and therefore had no well-founded fear of persecution-Post-determination refugee claimants in Canada class review unfavourable-H & C application unsuccessful-Applicants told would be deported to Somalia, without indication of which city there-Execution of deportation order stayed pending disposition of application for leave and judicial review of refusal of H & C application-In Kahn v. University of Ottawa (1997), 34 O.R. (3d) 535, Ontario Court of Appeal held where decision turning on credibility, decision maker should not make adverse finding without first hearing from affected person-Applicants herein did in fact have hearing before CRDD, as result of which adverse credibility finding made with respect to status as Somali nationals-As both PDRCC officer and H & C officer assumed applicants in fact Somali nationals, hearing would have served no purpose, at least on that score-Fact officer conducting H & C review referred to CRDD and PDRCC decisions did not mean officer limited her consideration to those decisions or gave them undue weight-At conclusion of argument, counsel for applicants moved to amend notice of application and notice of motion to include new ground of review: whether reasons had been given at all-Document purporting to be reasons did not in fact disclose basis on which decision made-Therefore, serious issue raised: whether applicant in fact provided with reasons and, if so, whether reasons adequate-Serious issue satisfying first part of three-part test-As to irreparable harm, in absence of Minister committing to particular destination, fairness to applicants requiring Court to assume they will be deported to place most dangerous to them-On basis of evidence, deportation to Mogadishu would constitute irreparable harm because of serious risk of harm to applicants-Latter finding not general finding that due to country conditions, no failed refugee claimant can ever be returned to Somalia-Applicants' situation unique-Having regard to risk of physical harm to applicants, balance of convenience favours them-Applicants granted leave to amend notice of application to include as ground for review absence of, or adequacy of, reasons for refusal of H & C application.