Razzaq v. Canada (Minister of Citizenship and Immigration), 2006 FC 148

Date: 20060207

Docket: IMM-565-06

Citation: 2006 FC 148

Toronto, Ontario, February 7, 2006

PRESENT:      THE HONOURABLE MR. JUSTICE VON FINCKENSTEIN                

BETWEEN:   

ABDUL RAZZAQ

Applicant

and

THE MINISTER OF CITIZENSHIP & THE MINISTER OF Public safety

& emergency preparedness

Respondent

                                            REASONS FOR ORDER AND ORDER                    

[1]                The Applicant applied for a stay of removal scheduled for March 3, 2006.

[2]                The Applicant came to Canada on May 28, 2001 from Pakistan and applied for refugee status alleging fear of persecution on the basis of his Shia religion, The Immigration and Refugee Board ("Board") denied his claim on July 24, 2002 and his judicial review application was denied by Snider J. on July 10, 2003. His Pre-Removal Risk Application ("PRRA") was denied on December 12, 2005 although he only received a copy on January 23, 2006.

[3]                His judicial review of that PRRA decision is outstanding and he is seeking a stay until that application for leave is decided and should it be granted the application for judicial review is decided.

[4]                Relying on Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302, the Applicant is trying to establish serious issue, irreparable harm and balance of convenience on the following basis.

[5]                For serious issue he contends:

a)         that his negative PRRA decision was only delivered on January 23, 2006 although rendered on December 12, 2005; and

b)        that the PRRA officer did not assess his profile as a prominent member of the Pakistan People=s Party (APPP@) .

[6]                I fail to see how the late delivery of the PRRA decision in any way constitutes a serious issue. The removal is slated for March 3, 2006 and, thus, he has plenty of time to invoke any legal remedies which he would like to seek, and he indeed has done so.

[7]                As to his membership in the PPP, this issue was considered by the Board and rejected on the basis of lack of credibility, a finding that was sustained by Snider J. on judicial review Razzaq v. Canada (Minister of Citizenship and Immigration) 2003 FC 864. No new evidence was presented to the PRRA officer on this point, as he points out on page 16 of his decision. There being no new evidence, there was no requirement by the officer to revisit this issue.

[8]                The Applicant thus has failed to make out one leg of the tripartite, conjunctive Toth, supra test. Having failed to do so, there is no need for me to consider irreparable harm or balance of convenience with respect to the PRRA officer's decision.

[9]                In the interim, the Applicant, however, married a Canadian citizen of Pakistani origin on July 30, 2004, and on July 15, 2005 submitted an application on Humanitarian and Compassionate ("H & C") grounds for an inland application for permanent residence based on his spouse's sponsorship. That application is still outstanding, and due to a mix up on addresses, a scheduled interview has not taken place.

[10]            I see no reason for removing the Applicant, who is gainfully employed and has no criminal record, until this application is heard. Removal at this point in time would cause considerable hardship to the Applicant and his wife without any perceivable advantage to the Respondent, should the H & C application be successful. Accordingly, I will grant a stay until the H & C application is heard.

ORDER

THIS COURT ORDERS that the removal of the Applicant is stayed until a decision has been rendered on his Application for Permanent Residence based on Spousal Sponsorship dated July 15, 2005.

"K. von Finckenstein"

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           IMM-565-06

STYLE OF CAUSE:                           ABDUL RAZZAQ

                                                                                                                            APPLICANT

and

                                                            THE MINISTER OF CITIZENSHIP & THE MINISTER

                                                            OF Public safety & emergency

                                                            preparedness

                                                                                                                RESPONDENT

PLACE OF HEARING:                     TORONTO, ONTARIO

DATE OF HEARING:                       FEBRUARY 6, 2006

REASONS FOR ORDER

AND ORDER :                                   VON FINCKENSTEIN J.

DATED:                                              FEBRUARY 7, 2006   

APPEARANCES:

Lani Gozlan                                                                               FOR THE APPLICANT

Negar Hashemi                                                              FOR THE RESPONDENT

SOLICITORS OF RECORD:

Max Berger Professional Law Corporation

Barristers & Solicitors

Toronto, Ontario                                                                       FOR THE APPLICANT

John H. Sims, Q.C.

Deputy Attorney General of Canada                                          FOR THE RESPONDENT