Date: 20060207
Docket: IMM-7079-05
Citation: 2006
FC 156
Calgary, Alberta,
February 7, 2006
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
KHALID
MUHAMMAD
Applicant
and
THE MINISTER OF CITIZENSHIP
& IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for staying the removal of the
Applicant, currently scheduled for February 9, 2006, until such time as the
underlying applications for leave and for judicial review of the negative
decisions on the PRRA and on the humanitarian and compassionate applications
have been dealt with.
[2] The Applicant claimed to have entered Canada
via Blackpool, Quebec, without proper documentation on September 20, 1998.
[3] On September 28, 1998, the Applicant
made a refugee claim at CIC Calgary stating that he has a wife and two children
still living in Pakistan. On August 30, 1999, the Applicant was found not to
be a refugee by the Immigration and Refugee Board. The Federal Court dismissed
his application for leave and judicial review of that decision on December 10,
1999.
[4] On September 20, 1999, the Applicant
submitted a Post Determination of Refugees in Canada Class application.
[5] On June 7, 2002, an application for
permanent residence based on humanitarian and compassionate grounds was
received at Case Processing Centre, Vegreville.
[6] On July 29, 2002, the Applicant’s
departure order became a deemed deportation order.
[7] On January 3, 2003, the Applicant’s
Pre-Removal Risk Assessment application was initiated. This included his PDRCC
submission from 1999.
[8] On September 12, 2005, a negative
decision was made on the Applicant’s PRRA application. On the same day, his
application for permanent residence based on humanitarian and compassionate
grounds was also refused. These decisions were delivered to the applicant in
person on November 14, 2005.
[9] On November 23, 2005, the Applicant
filed two separate applications for leave and judicial review in respect of
each negative decision. The Respondent has never been served with either of
those applications, and as a result, the Applicant’s counsel has had to file a
motion for extensions of time that is still pending.
[10] On November 24, 2005, the Applicant was
given a removal letter for travel on December 12, 2005, which subsequently had
to be cancelled as the airlines had a moratorium on deportees traveling through
Hong Kong during the Christmas season.
[11] On January 17, 2006, a second removal
letter detailing new travel arrangements for February 9, 2006 was delivered to
the Applicant’s home.
[12] Despite the fact that this motion seems
to be premised on two separate judicial review applications, counsel for the
Respondent has waived his objection to the jurisdiction of this Court based on
section 18.2 of the Federal Courts Act. I also understand that he does
not object to this motion being entertained despite the fact that the motions
for an extension of time to file the Applications for judicial reviews have not
yet been granted.
[13] Counsel for the Respondent is correct,
nevertheless, in objecting to an application for a stay pending the attendance
of the Applicant at the rehabilitation centre and his recovery from his
injury. This Court’s jurisdiction is indeed limited by statute so that a stay
may only be granted pending the final disposition of the leave application, as
opposed to any other external event.
[14] In order for the Applicant to succeed, he
must satisfy all three branches of the test developed by the Federal Court of
Appeal in Toth v. Canada (Minister of Employment and Immigration), 86
N.R. 302. In other words, the Court must be satisfied that the Applicant has
raised a serious issue, that he will suffer irreparable harm if removed from Canada, and that
the balance of convenience favours him.
[15] Counsel for the Applicant raised two
issues with respect to the decision on the application for permanent residence
based on humanitarian and compassionate grounds. First,
she submitted
that when there has been an unreasonably lengthy delay in making a decision (in
this case, two years and seven months), fairness demands that the Applicant be
notified that a decision is about to be made so that he is given one last
opportunity to make further submissions and present updated material.
Secondly, she contended that the Immigration officer in his H & C decision
made no mention of his injury and of the fact that the Applicant’s ability to
work in Pakistan and provide for his family would be impaired if deported to Pakistan
before he had fully recovered.
[16] Unfortunately for the Applicant, I am not convinced
that these issues are serious enough to satisfy the first leg of the Toth
test. I am mindful of the fact that on this first aspect of the test, the
threshold is quite low. On the other hand, it must be borne in mind that the
standard of review of an H & C decision is quite high, i.e. the standard of
reasonableness simpliciter. In other words, this Court will not
interfere with an immigration officer’s decision unless there is no line of
analysis that could reasonably lead the officer from the evidence submitted to
the conclusion. As for the PRRA decision, the standard of review is even
higher, i.e. the standard of patent unreasonableness. Having carefully
reviewed the two decisions of the Immigration officer in the PRRA and H & C
applications, I am far from convinced that he erred in any reviewable way; his
reasons are cogent and thorough, and appear robust enough to sustain a probing
review along the standards just outlined.
[17] I need not prejudge the outcome of the
two judicial review applications, however, as I am of the view that the
Applicant would not suffer any irreparable harm were he to be removed to
Pakistan. As the Federal Court of Appeal stated in Atwal v. Canada
(M.C.I.),
2004 FCA 427,
irreparable harm must be more than a series of speculation. In the present case,
the Applicant has failed to provide any objective evidence that his life is
still in danger in Pakistan; he failed to provide any explanation as to why he
did not make any further submissions in his H & C application after
February 2004, if he felt that they would have been pertinent to that
application and ought to have been before the H & C officer prior to a
decision being made.
[18] As for the consequences for his health,
there is no evidence that his injury, for which he has already had surgery,
cannot be taken care of in Pakistan, or that rehabilitation cannot be provided
to him. It may be that he will not be able to sustain himself or his family,
economically speaking, as well as he would in Canada, or that his possibilities
of employment will be more limited for a short while. But all of this is
speculative, and is somehow offset by the fact that he will be able to rely on
his whole family in Pakistan instead of being all by himself in Canada. And
again, all of these consequences are inherent in the notion of deportation
itself.
[19] Finally, the removal of the Applicant
will not render his leave applications moot. He may continue to be represented
if he is removed from the country, and if he is eventually successful in his
judicial review applications, he may return to Canada at the Minister’s expense
(Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 52(2)).
[20] For all the above reasons, I come to the
conclusion that the balance of convenience favors the Minister. The two first
criteria of the Toth test not having been met, staying the removal would
not be in the public interest It is now more than seven years since the
Applicant first arrived in Canada. He has had three negative administrative
decisions. In those circumstances, and failing any clear evidence of
irreparable harm resulting from his
removal, the
Minister is under a statutory obligation to ensure that the removal is carried
out as soon as possible. As the Federal Court of Appeal stated, “this is not
simply a question of administrative convenience, but implicates the integrity
and fairness of, and public confidence in, Canada’s system of immigration
control” (Selliah v. Minister of Citizenship and Immigration,
2004 FCA 261).
ORDER
THIS COURT ORDERS that:
The motion for a stay of
execution of the removal order against the Applicant is dismissed.
“Yves
de Montigny”
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