Date: 20021011
Docket: IMM-4495-02
Neutral citation: 2002 FCT 1073
BETWEEN:
CHAO QUAN ZHAO
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] The Applicant is facing imminent removal and on Friday, October 11, 2002, sought a stay of the removal order.
[2] In originating files, the Applicant is seeking leave for judicial review, file no. IMM-4495-02, in which he is challenging the decision of a PRAA Officer dated September 12, 2002. In file no. IMM-4870-02, the Applicant is applying for further leave for judicial review of removal order dated October 10, 2002.
[3] The Applicant arrived in Canada in June 2001 and has remained in detention since that date.
[4] A refugee claim was entertained and a negative determination was issued on December 13, 2001. Leave was granted and judicial review was denied on September 4, 2002, and the CRDD decision was upheld.
[5] The CRDD made findings of fact with respect to the claimant's arrival on B.C.'s west coast on board a raft. The claimant alleged that he was on a fishing vessel, the "Ming Chang", which took fire. A number of the crew perished; he along with eight others floated at sea for a number of days before landing.
[6] Based on evidence submitted by the Minister's representative, the CRDD disbelieved the claimant and determined that he was on board the vessel "Gin Tung Leung", a Taiwanese vessel that had been hijacked. The ultimate determination by the CRDD was total disbelief of the claimant's version of the events.
[7] This Court's decision on review of September 4, 2002, relied on the findings of fact of the CRDD as to credibility, particularly that he was not on a fishing vessel, and dismissed the application.
[8] New evidence submitted to the Court, not available to the decision-maker of the PRAA, but available to the Removal Officer, indicated that two similarly situated individuals who were returned to China were found guilty in the People's Law Court of Ping Tan County, Fujian Province, in September 2002, and sentenced to seven years' imprisonment.
[9] The decision of the Chinese court found that the two individuals were in fact on board a fishing vessel, the "Ming Chang", which had been lost at sea because of fire. The Court found them to be smugglers. This determination of facts casts doubt on the findings of both the CRDD and the judicial review decision with respect to the very important issue of credibility of this applicant.
[10] The two similarly situated individuals pleaded guilty and it is suggested by counsel for the Applicant that they were coerced into so doing; that a seven-year jail sentence should be considered cruel and unusual punishment.
[11] The matter is worthy of further debate by this Court, thus there is a serious issue to be tried. Perhaps the Removal Officer in exercising her discretion may not have considered that some humanitarian and compassionate grounds could prevail.
[12] The balance of convenience certainly lies with the Applicant; if he were returned to China the possible sanction that could be meted out could amount to irreparable harm and should be subjected to a new exhaustive debate. The balance of convenience lies with the Applicant; a removal to the People's Republic of China could not be overcome.
[13] The application for stay of removal order is granted until such time as there is a determination of the leave for judicial review, and if granted, the ultimate decision of the judicial review application.
(Sgd.) "P. Rouleau"
Judge
Vancouver, B.C.
October 11, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4495-02
STYLE OF CAUSE: Chao Quan Zhao v. Minister of Citizenship and
Immigration
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: October 11, 2002
REASONS FOR Order : The Honourable Mr. Justice Rouleau
APPEARANCES:
Mr. Larry W.O. Smeets FOR PLAINTIFF / APPLICANT
Ms. Banafsheh Sokhansanj FOR DEFENDANT/ RESPONDENT
SOLICITORS OF RECORD:
Smeets Law Offices
Vancouver, B.C. FOR PLAINTIFF/APPLICANT
Morris A. Rosenberg, Deputy
Attorney General of Canada FOR DEFENDANT/ RESPONDENT