Date: 20060105
Docket: IMM-20-06
Citation: 2006 FC 14
Ottawa,
Ontario, January 5, 2006
PRESENT: THE
HONOURABLE MR.JUSTICE BLAIS
BETWEEN:
JARADA
ALAA
APPLICANT
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
AND
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
RESPONDENTS
REASONS
FOR ORDER AND ORDER
BLAIS J.
[1]
This is a application
for the stay of a removal order of which the applicant was notified on December
30, 2005.
[2]
The applicant was
summoned to the airport on December 18, 2005 for his removal. He did not show
up, and a warrant for his arrest was issued two days later, on
December 20, 2005.
[3]
The applicant was
arrested on December 22, 2005, and has been detained since then. The applicant
submitted a medical certificate showing that he was hospitalized on December
18, 2005, thereby explaining why he did not show up.
[4]
In any event, he left
the hospital two days later, before being arrested.
[5]
On December 23, 2005,
the applicant’s detention was reviewed by a Commissioner, as well as on December
30, 2005, that is to say, seven days later.
[6]
On December 30, 2005,
the applicant was advised that his removal was now scheduled for January 6,
2006.
[7]
The notice given to
the applicant on December 30, 2005, to the effect that he would be removed on
January 6, 2006, is the subject of an application for judicial review
underlying this application to stay.
[8]
To succeed, the
applicant must show there is a serious question to be tried. On this point, the
respondents submitted there was no order or administrative decision that was
the subject of a legal challenge, as no evidence was adduced to the effect that
the applicant was contesting the application dated December 30 or that either a
verbal or a written application had been made to the removal officer requesting
that he postpone his decision.
[9]
Right from the
beginning, the applicant made an objection claiming that the application to
stay should be dismissed because there was no underlying application.
[10]
On this point, the
applicant cited the decision rendered by colleague, de Montigny J. in Dung
Tran v. M.C.I., (2005) F.C. 394. He concluded that removal or the
determination of a date for removal is not a decision subject to judicial
review. However, in Tran, the applicant had submitted two underlying
applications, and the second one challenged the PRRA decision. This is not the
case here, because the PRRA decision has never been contested.
[11]
As far as the removal
date was concerned, de Montigny J. specified in his decision at paragraph 2:
The underlying application
for leave in this matter also challenges the Direction to Report for Removal on
March 22, 2005. This is not a decision or order, as contemplated in s. 18.1(2)
of the Federal Court Act, and it is thus not reviewable by way of an
application for judicial review. Indeed, it appears that the applicant never
asked the expulsion officer for deferral of his removal, nor did he ask for a
deferral from the Escort Officer who served the Direction to Report. As a
consequence, this motion requesting a stay of the removal order will proceed on
the basis that the underlying application for judicial review is only
challenging the PRRA decision.
[12]
Obviously, in the case
at bar, because the only application underlying the application for a stay
presented by the applicant concerns removal, the respondents suggested that the
application for a stay must be dismissed, given the lack of an underlying
application.
[13]
I agree with the
respondent’s position, because nothing in the evidence shows that steps were
undertaken, either verbally or in writing, to request that the removal officer
grant an administrative stay or postpone the removal date.
[14]
Although the Federal
Court has broad sweeping powers in matters of judicial review, it must also be
realized that decisions must be rendered in a practical context.
[15]
If every purely
administrative order issued by an officer of a department, whether it be
Citizenship and Immigration or any other government agency, were subject to an
application for judicial review, the complete administration of federal
entities could be compromised, thereby rendering them totally ineffective.
[16]
Far from concluding
that federal administrative decisions are not subject to judicial review by the
Federal Court, my comment, which is also to be considered as an approval of the
decision rendered by de Montigny J. in Tran, supra, simply specifies
that only a decision or an order is subject to judicial review under subsection
18.1(2) of the Federal Courts Act.
[17]
Although the
conclusion I reached on the above-mentioned point was to immediately rule that
the application for a stay must be dismissed without deciding the issue on the
merits, I nevertheless examined the matter to determine whether there was a
serious issue, taking for granted that the notice of removal was a decision or
an order within the meaning of subsection 18.1(2) of the Act.
[18]
I am of the opinion
the applicant did not succeed in convincing me that there would be a serious
question to be tried if the Court did review the order of removal issued on December
30, 2005. In fact, the applicant did not succeed in his attempt to establish
refugee status before the Immigration and Refugee Board and before the Federal
Court. His PRRA application was also dismissed, and no application for judicial
review was filed. The fact must be underlined that the applicant was not
considered credible.
[19]
The applicant
essentially repeated the analysis of the files presented before the Immigration
and Refugee Board and the Federal Court, but unfortunately these issues were already
dealt with. It is not up to the Court that hears a application for a stay, to
reopen the review process for decisions already rendered.
[20]
As far as the decision
rendered by the removal officer on December 30, 2005 is concerned, the
applicant’s memorandum does not criticize him for anything specific. In fact,
no application for postponing the decision was made to him. The fact that a few
days earlier the applicant applied for permanent residence on humanitarian
grounds is also insufficient, because this application was made the day after
his arrest, that is to say, five days after the dated scheduled for his
removal. This application was filed at the last minute and cannot be considered
as being submitted within a reasonable time limit, considering that the
applicant has been in Canada for more than three years.
[21]
Therefore, there is no
serious question to be tried.
[22]
As far as irreparable
harm is concerned, the applicant essentially repeated the arguments raised
before the Immigration and Refugee Board, the Federal Court and the PRRA
officer. These arguments have all been dismissed. The fact of invoking that the
Syrian authorities must be advised of the applicant’s arrival several days in
advance has more to do with the fact that the applicant is being removed from
Canada and two officers must accompany him at the time of his removal.
[23]
The arrest warrants
that were filed, the probative value of which was challenged at the preceding
hearings, seem to be linked to administrative offences committed by the applicant
during his employment in Syria, and there is no evidence that the applicant
will be arrested, detained or even tortured when he returns to Syria. Quite the
contrary, the allegations of risk were dismissed by all the decision-makers
involved.
[24]
Therefore, the
applicant has not convinced me that irreparable harm would result if he
returned to his country of origin.
[25]
As far as the balance
of convenience is concerned, it is clearly in the Minister’s favour, who must
under section 48 of the Immigration and Refugee Protection Act
enforce a removal order as soon as it is reasonably practical.
[26]
As far as the belated
submission of medical evidence is concerned, the Court authorized the filing of
this document, but it seems that the applicant was released from hospital
within 48 hours, and the report specifies that in the circumstances, medication
is appropriate. Although this medical report raises concerns, the doctor made
no specific recommendation to the effect that the removal process must be
stayed or cancelled. There is no evidence on record to the effect that the
applicant’s country of origin, Syria, is unable to give the applicant the
medical care required by his condition.
[27]
Accordingly, the
application for a stay cannot be allowed.
ORDER
THE COURT ORDERS:
That the application for a stay be dismissed.
“Pierre Blais”
Certified
true translation
Michael
Palles
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