Date: 20060619
Docket: IMM-2808-06
Citation: 2006 FC 783
Montréal, Quebec, June 19, 2006
Present:
The Honourable Mr. Justice Shore
BETWEEN:
AZHAR
BASHIR
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
and
MINISTER OF PUBLIC SAFETY
Respondents
REASONS FOR JUDGMENT AND
JUDGMENT
INTRODUCTION
[1]
This
is a motion to stay an order for removal to Pakistan to be enforced on
June 20, 2006.
FACTS
[3]
The
following facts emerge from the exhibits attached to the affidavit
of Laurence Gagnon, filed in support of this matter, as well as the
decision contemplated by the application for leave and for judicial review.
[4]
The
applicant, a citizen of Pakistan, stated that he arrived in Canada on January
2, 2001, from the United States.
[5]
On
January 4, 2001, he claimed refugee status at the inland office of Citizenship
and Immigration Canada (CIC).
[6]
On
October 11, 2001, the Refugee Protection Division of the Immigration and
Refugee Board (Board) made a negative finding in his regard, determining that
he lacked credibility (see the decision, exhibit “A” to the affidavit of
Laurence Gagnon).
[7]
The
application for leave and for judicial review filed against that decision was
dismissed on April 17, 2002 (docket number IMM-5147-01).
[8]
On
May 4, 2006, the immigration officer made a negative finding on the Pre-Removal
Risk Assessment (PRRA).
[9]
The
officer also made a negative finding on the exemption application on
humanitarian and compassionate grounds filed by the applicant (exhibit “B” to
the affidavit of Laurence Gagnon).
[10]
By
letter dated May 11, 2006, the CIC summoned the applicant for a meeting at
their offices the following May 23, in order to give him these decisions.
[11]
On
May 23, 2006, at the interview, the officer responsible for the enforcement of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act),
summoned the applicant to a meeting the following June 6, asking him to bring a
ticket for a flight to Pakistan leaving “no later than” June 23, 2006.
[12]
On
June 6, 2006, the applicant came to the interview with a ticket for a flight to
Pakistan, scheduled to leave on June 20, 2006.
[13]
On
June 14, 2006, the applicant served a motion to stay his removal from Canada
scheduled for June 20, 2006.
[14]
The
applicant is married and is the father of two children who live in Pakistan.
ISSUES
[15]
In
order to assess the merits of the motion to stay, this Court must determine
whether the applicant meets the requirements of the case law as set out by the
Federal Court of Appeal in Toth v. Canada (Minister of Employment and
Immigration), 86 N.R. 302 (F.C.A.), [1988]
F.C.J. No. 587 (QL).
[16]
In
that matter, the Court of Appeal referred to three requirements that it
imported from the injunction case law, specifically the decision of the Supreme
Court of Canada in Manitoba (Attorney General) v. Metropolitan Stores,
[1876] 1 S.C.R. 110. These three requirements are as follows:
(a) there is a serious issue to be
tried
(b) irreparable harm
(c) and the assessment of the
balance of convenience
[17]
Therefore,
in the absence of a statutory stay, this Court must determine whether the
applicant has established that there is a serious issue to be tried in his
case, that there will be irreparable harm as a result of his removal to
Pakistan and an inconvenience greater than the inconvenience to the Minister as
a result of not enforcing the removal and not respecting the provisions of the
Act.
[18]
The
applicant’s affidavit filed in support of his motion to stay is laconic and
does not add any fact tending to establish that there is a serious issue to be
tried, or irreparable harm.
[19]
In
fact, the applicant’s affidavit simply states that all of the facts appearing inter
alia in exhibit A are true.
ANALYSIS
(a) No serious
issue to be tried
[20]
Subsection
112(1) of the Act provides the following:
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112. (1) Application for protection – A person
in Canada, other than a person referred to in subsection 115(1), may, in
accordance with the regulations, apply to the Minister for protection if they
are subject to a removal order that is in force or are named in a certificate
described in subsection 77(1).
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112. (1) Demande de protection – La
personne se trouvant au Canada et qui n’est pas visée au
paragraphe 115(1) peut, conformément aux règlements, demander la
protection au ministre si elle est visée par une mesure de renvoi ayant pris
effet ou nommée au certificat visé au paragraphe 77(1).
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[21]
The
person claiming the protection must establish the facts submitted by him.
[22]
Paragraph
113(a) of the Act limits the evidence that may be adduced in the context
of a PRRA:
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113.
Consideration of application – Consideration of an application for protection
shall be as follows:
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113.
Examen de la demande – Il est disposé de la demande comme il suit:
|
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(a) an
applicant whose claim to refugee protection has been rejected may present
only new evidence that arose after the rejection or was not reasonably
available, or that the applicant could not reasonably have been expected in
the circumstances to have presented, at the time of the rejection;
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a) le
demandeur d’asile débouté ne peut présenter que des éléments de preuve
survenus depuis le rejet ou qui n’étaient alors pas normalement accessibles
ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les circonstances,
de s’attendre à ce qu’il les ait présentés au moment du rejet;
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[23]
The
officer first pointed out that the Refugee Protection Division had determined
that the applicant lacked credibility.
§
At
the beginning of the hearing before the Refugee Protection Division, the
applicant amended his Personal Information Form to delete two significant
events, namely his involvement in two important rallies that took place in
March and May 2000. In his original version, the applicant stated that he
had been arrested and imprisoned following this first rally; [the respondent
observed that the applicant appeared to have revived this allegation before the
PRRA officer, alleging that he had been arrested in March 2000 because of
his involvement in organizing public demonstrations – see page 3 of the
impugned decision];
§
The
applicant did not give direct answers to the questions asked;
§
The
applicant contradicted himself about when his problems allegedly began;
§
The
applicant contradicted himself about when he was falsely accused and
threatened;
§
The
applicant contradicted himself about when it was suggested that he enter
politics;
§
Finally,
the applicant contradicted himself about the First Information Report (FIR)
that he filled out after the death of his father; specifically, the applicant
contradicted himself about whether he had identified anyone for the police and
also whether he talked about the threats or not.
[25]
This
decision by the Refugee Division was one of the factors that the immigration
officer had to consider for his PRRA.
[26]
On
that point, the officer stated that the risks submitted before him rehashed
those submitted before the Board. Namely, the false accusations filed against
the applicant and the risks tied to political activities.
[27]
Indeed,
the immigration officer set out the evidence submitted for his review.
[28]
In
his memorandum, the applicant claimed that the submitted documentation was new
evidence that should have been taken into consideration by the officer.
[29]
Yet,
it appears clearly from the dates on the different personal documents filed by
the applicant that they predate the Board’s decision, dated October 2001
(see page 4 of the impugned decision).
[30]
Despite
that, the officer handling the matter indicated that all of these documents
would be considered in his assessment.
[31]
The
applicant claimed that [translation] “The
PRRA officer does not specify how these documents are irrelevant with regard to
the applicant’s personal situation”.
[32]
Countering
that argument, bear in mind that, to the contrary, the officer very clearly
stated the reasons why he could not assign probative value to the personal
documents filed into evidence by the applicant. Therefore:
§
The
applicant filed photocopies of the FIR, the arrest warrants and the documents
regarding the death of his father; the officer noted that all of these
documents had already been assessed by the Board and could only, at the most,
corroborate a story that the Refugee Division had already found to lack
credibility;
§
In
fact, the Board stated that it believed that the applicant’s claim had been fabricated
and did not believe that he had been involved in election campaigns or that he
had been threatened by political rivals;
§
Indeed,
the officer stated that the letter from the President of the Pakistan Muslim
Party – Nawaz (PML(N)) was one of the applicant’s acquaintances, which made the
letter biased, like the letter from counsel;
§
Also,
it appeared from the letter from the President of the PML(N) that he had no
personal knowledge of the alleged facts.
[33]
The
respondent stated that the applicant did not think it worthwhile to attach
these documents to his affidavit so that this Court could review them.
[34]
The
PRRA officer gave many reasons in support of his decision not to assign any
probative value to these documents. The PRRA officer was certainly supposed to
determine their value. His decision in that respect is certainly not patently
unreasonable.
[35]
In
Malhi v. Canada (Minister of Citizenship and Immigration ), 2004 FC 802,
[2004] F.C.J. No. 993 (QL) it was stated that:
. . . Further, the IRB
concluded that the applicant's allegations did not conform to the current
political situation in India, as it appeared from various reliable sources of
documentary evidence. This conclusion was shared by the PRRA Officer who
considered recent documentary evidence. Clearly, the PRRA Officer did not base
her decision on an erroneous finding of fact that was made in a perverse or
capricious manner or without regard to the material before her. Overall, the
decision is not patently unreasonable.
. . . It is well-established
that it is within the purview of the PRRA Officer, as a decision-maker, to
determine the credibility to be given to the applicant's testimony as well as
to the evidence produced in support of the claim (Singh v. Canada (Minister
of Citizenship and Immigration), [1996] F.C.J. No. 1329 at paragraph 3
(T.D.)(QL)).
As for the new evidence filed
on May 29, 2003, an affidavit from the Sarpanch of Nano Malhian village, where
the Sarpanch confirms the facts alleged by the applicant. The PRRA Officer
finds that, although very informative, this evidence does not in and of itself
suffice to reverse the outcome of the applicant's claim in light of both the
documentary evidence on file and the explanations provided by the applicant.
The PRRA Officer gave little probative value to this new evidence. Considering
that the assessment of the evidence is within the purview of the PRRA officer
who has the discretion to rely on the evidence that she deems appropriate, the
intervention of this Court is not justified. . .
[36]
The
immigration officer’s assessment did not stop there. The officer also
consulted the more general documentary evidence. In light of this evidence,
the officer stated his findings:
§
The
PML(N) and the PPP are now both part of a political coalition and the evidence
does not report further violence between the members of these political
parties; the officer was not satisfied that the applicant had established that
there was a personal risk in that respect, even more so because the applicant
did not have the profile of an important politician within his party;
§
With
regard to religious practice, the applicant did not file any evidence
establishing that there was a personal risk and his personal history does not
support the existence of such a fear; the applicant is Islamic, the most
widespread religion in Pakistan and does not refer to a more specific
membership in a religious minority;
§
The
applicant did not file any evidence indicating that he had spoken out against
the government in 1999, or that he had organized a demonstration, for which he
had allegedly been arrested in March 2000.
[37]
In
short, the officer could not have determined, on the basis of the evidence
filed, that the applicant would be personally at risk and that decision by the
officer was reasonable in light of the words of Mr. Justice Paul
Rouleau in Ahmad v. Canada (Minister of Citizenship and Immigration),
2004 FC 808, [2004] F.C.J. No. 995 (QL):
. . . A claim based on
section 97 requires the Board to apply a different criterion pertaining to the
issue of whether the applicant's removal may or may not expose him personally
to the risks and dangers referred to in paragraphs 97(1)(a) and (b)
of the Act. However, this criterion must be assessed in light of the personal
characteristics of the applicant. Indeed, as Blanchard J. noted in Bouaouni,
supra:
para. 41 [T]he wording
of paragraph 97(1)(a) of the Act ... refers to persons, "... whose
removal ... would subject them personally ...". There may well be
instances where a refugee claimant, whose identity is not disputed, is found to
be not credible with respect to his subjective fear of persecution, but the
country conditions are such that the claimant's particular circumstances, make
him/her a person in need of protection.
Thus the assessment of
the applicant's fear must be made in concreto, and not from an abstract and
general perspective. The fact that the documentary evidence illustrates
unequivocally the systematic and generalized violation of human rights in
Pakistan is simply not sufficient to establish the specific and individualized
fear of persecution of the applicant in particular. . . .
[38]
The
assessment of the evidence carried out by the panel is a question of fact. In Tharumarasah
v. Canada (Minister of Citizenship and Immigration ), 2004 FC 211, [2004]
F.C.J. No. 258 (QL) paragraph 6, the Court described in the
following terms the appropriate standard of review for tribunal decisions,
which command significant deference:
Decisions of PRRA
officers are to be given significant deference. Where there is nothing
unreasonable in the PRRA decision, there will be no serious issue. In this
case, the PRRA officer clearly considered Ms. Tharumarasan's submissions and
supporting documentary evidence with respect to ongoing human rights abuses in
Sri Lanka. What Ms. Tharumarasah is asking the Court to do is to re-weigh the
evidence that was before the PRRA officer. While Ms. Tharumarasah may not agree
with the PRRA decision, she has not demonstrated that it was arguably either
unreasonable or perverse, and accordingly no serious issue arises here.
(b) Lack
of irreparable harm
[39]
The
respondent points out that irreparable harm was defined by the Court in Kerrutt
v. Canada (Minister of Employment and Immigration), (1992) 53 F.T.R. 93,
[1992] F.C.J. No. 237 (QL) as the removal of a person to a country
where their life or safety would be in jeopardy.
[40]
It
is not enough that an applicant alleges harm in an affidavit, which is not even
the case here. When that harm is a fear of being mistreated if removed to one’s
country, it is still necessary to adduce evidence establishing the objective
basis of that fear: Gogna v. Canada (Minister of Employment and
Immigration), (1993) 68 F.T.R. 140, [1993] F.C.J. No. 817 (QL).
[41]
A
connection must also be established between the documentary evidence filed and
the applicant’s personal situation (Ly v. Canada (Minister of
Citizenship and Immigration ), IMM-1564-98, May 4, 1998
(Richard J.); see also: Iyathurai v. Canada (Minister of Citizenship
and Immigration), IMM-2593-99, May 26, 1999 (McKeown J.))
[42]
This
Court has also stated on many occasions that the alleged harm cannot be a
matter of pure speculation, as in Ward v. Canada (Minister of
Citizenship and Immigration), IMM-15-97, January 7, 1997
(Joyal J.).
[43]
In
appreciating irreparable harm, this Court has often decided that decisions by
the Refugee Protection Division could be taken into account as well as the fact
that an applicant lacks credibility (Akyol v. Canada (Minister of
Citizenship and Immigration), 2003 FC 931, [2003]
F.C.J. No. 1182 (QL).
[44]
In
this case, the applicant had several opportunities to submit his arguments to
the effect that his removal to Pakistan would jeopardize his life and safety.
[45]
The
applicant made these arguments before the Board’s Refugee Protection Division,
and it dismissed his arguments, on the basis that they lacked credibility.
[46]
Following
a negative finding by this panel, the applicant made his arguments against that
decision before the Federal Court, but his application was dismissed (see docket
number IMM-5147-01 of this Court).
[47]
Very
recently, in order to obtain the final green light before removing the
applicant, CIC consulted an immigration officer with expertise in this area.
[48]
The
officer consulted determined that the applicant had not established that there
was a personalized risk.
[49]
Therefore,
at each stage, it was noted that there was no removal risk for the applicant.
[50]
In
light of the above, the Court determines that the existence of an irreparable
harm has not been established.
(c) The
balance of convenience favours the Minister
[51]
Subsection
48(2) of the Act obliges the respondent to enforce the removal order as soon as
is reasonable practicable.
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48. (1) A removal order is enforceable
if it has come into force and is not stayed.
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48. (1) La mesure de renvoi est
exécutoire depuis sa prise d’effet dès lors qu’elle ne fait pas l’objet d’un
sursis.
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(2) If a removal
order is enforceable, the foreign national against whom it was made must
leave Canada immediately and it must be enforced as soon as is reasonably
practicable.
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(2) L’étranger
visé par la mesure de renvoi exécutoire doit quitter immédiatement le
territoire du Canada, la mesure devant être appliquée dès que les
circonstances le permettent.
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[52]
Many
decisions by this Court have held that when assessing the balance of
convenience, the notion of public interest must be taken into account:
On the issue of balance
of convenience, the Court should consider the Public Interest as it relates to
the personal harm that could come about in this particular case. Referring to
Sopinka J. in Chiarelli v. Minister of Employment and Immigration
(1992), 135 N.R. 161, though dealing with an extradition case he wrote at page
182:
The most
fundamental principle of immigration law is that noncitizens do not have an
unqualified right to enter or remain in the country. At common law an alien
has no right to enter or remain in the country.
(Blum v. Canada (Minister of
Citizenship and Immigration ), [1994] F.C.J. No. 1990 (QL)).
CONCLUSION
[54]
Considering
all of the foregoing, the applicant does not satisfy the case law requirements
for obtaining a judicial stay. The motion is dismissed.
JUDGMENT
THE COURT ORDERS THAT the motion
to stay the enforcement of a removal order be dismissed.
“Michel
M.J. Shore“
Judge
Certified
true translation
Kelley
A. Harvey, BCL, LLB
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