Shaikh v. Canada (Minister of Citizenship and Immigration), docket IMM-5524-97

Date: 19980116

Docket: IMM-5524-97

BETWEEN:

     ABDUL RAZAK YUSUK SHAIKH

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

NADON J.

[1]      On December 30, 1997, I heard by way of a conference call a motion brought on short notice by the applicant. The motion was for an Order staying the execution of a deportation order. At the end of the hearing, I dismissed the applicant"s motion and informed counsel that I would provide reasons for my order. These are my reasons.

[2]      A brief summary of the facts is necessary to understand this application. The applicant, a citizen of India, entered Canada as a visitor on November 13, 1992. Shortly thereafter, he claimed refugee status alleging that he had been persecuted by reason of his religion. Specifically, the applicant alleged that he was a Muslim and that he had left India because religious groups and individuals of Hindu persuasion had harassed him, threatened him and beaten him up.

[3]      On March 9, 1994, the applicant"s claim for refugee status was heard. On July 10, 1995, the Immigration and Refugee Board (the "Board") dismissed his claim. The applicant"s application for leave and for judicial review of the Board"s decision was dismissed by this Court.

[4]      In July 1996 the applicant filed an application seeking, on humanitarian and compassionate grounds, to be exempted from the requirements of subsection 9(1) of the Immigration Act, R.S.C. 1985, c. I-2, which requires persons intending to apply for landing in Canada to make their application from outside the country.

[5]      The applicant was interviewed on May 13, 1997 in connection with his application. In early June 1997, his application was turned down. On December 24, 1997 the applicant filed an application for leave and for judicial review of the decision refusing his landing application on humanitarian and compassionate grounds.

[6]      On December 24, 1997, the applicant also filed a motion, brought on short notice, for an order staying the execution of a deportation order issued against him. As the applicant was scheduled to be deported from Canada on December 30, 1997, I heard his motion on December 29, 1997 and dismissed it.

[7]      I dismissed the motion because, in my view, it did not raise a serious issue. The motion of the applicant was brought on the basis that he was seeking a stay of the deportation order until such time as his application for leave and for judicial review was disposed of or until he had made submissions to a post-claim determination officer for consideration as a possible member of the post-refugee claimants in Canada class (PDRCC), and until the officer had disposed of the PDRCC application.

[8]      I indicated to the applicant"s counsel that I could not deal with the PDRCC issue as that issue had not been raised in the application for leave and for judicial review filed on December 24, 1997. I indicated, however, to counsel that I was prepared to hear him on the following day if a judicial review application was filed in respect of the PDRCC issue.

[9]      On December 30, 1997, the applicant filed an application for leave to commence judicial review proceedings with respect to a decision of post-claim determination officer R.P. Klagsbrun, dated September 30, 1996. The applicant"s judicial review proceedings read, in part, as follows:     

THE APPLICANT SEEKS LEAVE OF THE COURT to commence an Application for Judicial Review of a decision of Post-Claim Determination Officer R. Klagsbrun (the "Tribunal"), dated the 30th, day of September, 1996, wherein it was determined that the Applicant would not be subjected to a personal identifiable risk to his life, of extreme conditions or of inhumane treatment if he returned to his country, and that as such he was not a member of the Post-Determination Refugee Claimants in Canada Class (PDRCC). The Applicant was not aware that a post-claim determination assessment had taken place; did not receive the letter of determination dated September 30, 1997; and only saw it for the first time when it was forwarded to his solicitor Davies Bagambiire by the Department of Justice on December 29, 1997, as an Exhibit to the Affidavit of Theresa Herreria sworn to December 29, 1997.

     Further, the applicant applied for an order extending the time, pursuant to subsection 82.1(5) of the Immigration Act, during which he could file his application for leave and for judicial review.

[10]      The applicant filed his affidavit and that of a friend, Shamsuddin Thakor, a Canadian citizen employed by the Toronto Star in Toronto, Ontario.

[11]      The basis of the applicant"s attack of the PDRCC decision rendered by R. Klagsbrun was that he was not aware that a post-determination assessment had taken place and that he had not received the letter of determination dated September 30, 1997. The applicant stated that he only became aware of Mr. Klagsbrun"s decision when it was sent to his counsel by the Department of Justice on December 29, 1997 as an exhibit to the affidavit of Theresa Herreria sworn to on December 29, 1997. Mr. Klagsbrun"s decision was attached to Ms. Herreria"s affidavit as exhibit "A" thereto. The letter dated September 30, 1996, which the applicant states he never received, reads as follows:

We have been informed by the Convention Refugee Determination Division (CRDD) that you have been determined not to be a Convention refugee. Consequently, we are required to conduct a review of your case in order to determine if you are a member of the Post-Determination Refugee Claimants in Canada class (PDRCC). This class is limited to persons who will be subjected to a personal, objectively identifiable risk to their life, of extreme sanctions or of inhumane treatment if required to leave Canada.

A review of your file has been concluded. It has been determined that you are not a member of the PDRCC class as you are not likely to be subjected to any of the above risks. Enclosed please find a copy of the reasons for this decision.

[12]      Simply put, therefore, the applicant argues that he was denied natural justice since he was not given an opportunity to make submissions to the PDRCC officer. Consequently, the applicant submits that his application for judicial review raises a serious issue.

[13]      To counter the evidence filed by the applicant, the respondent filed the affidavit of Sudabeh Mashkuri, a solicitor with the Immigration Section of the Ontario Regional Office, Department of Justice Canada. At paragraph 3 of his affidavit, Mr. Mashkuri referred to the applicant"s submissions concerning questions 4 A) and 4 B) of his application for landing in Canada on humanitarian and compassionate grounds. Mr. Mashkuri attached a copy of the applicant"s submissions concerning questions 4 A) and 4 B) as exhibit B to his affidavit. Mr. Mashkuri states that this document was requested from the applicant"s immigration file. Ms. Horton, counsel for the respondent, referred me to page 2 of the applicant"s submissions and more particularly to the last paragraph thereof which provides as follows:

In the most recent communication from R. Klagsbrun, a Post Claim Determination Officer, it was noted that I should relocate within India in order to overcome the burden of living as a Muslim in a Hindu community which has threatened my life. It was suggested that I move to Kashmir or Utter Prudish as these areas are predominantly Muslim. I wish to address this suggestion as it is not an option which I can accept. [...]

[14]      It is important to remember that the applicant filed his application for landing in July 1996 and that it was denied in early June 1997. Thus, the applicant"s submissions, to which Mr. Mashkuri refers in his affidavit, were submitted, at the latest, on June 2, 1997, since that is the date on which the letter of denial was sent to the applicant.

[15]      It would thus appear, based on the submissions made by the applicant in support of his landing application, that he was aware, at least by June 2, 1997, that there had been a PDRCC determination by R. Klagsbrun. It will be recalled that Mr. Klagsbrun wrote to the applicant on September 30, 1996, to advise him of his determination that he was not a member of the PDRCC class. Mr. Klagsbrun"s letter and the reasons in support of his decision were attached to the affidavit of Theresa Herreria, an Administrative Clerk, employed by the Department of Justice in Toronto. It will also be recalled that the applicant takes the position that he first became aware of Mr. Klagsbrun"s decision and reasons when his counsel was provided with a copy of Ms. Herreria"s affidavit on December 29, 1997.

[16]      At page 2 of his reasons dated September 30, 1996, Mr. Klagsbrun states:

Documentary evidence provided at the CRDD Hearing indicates that over 90 million Muslims live in various parts of India. Muslims are in the majority in the Kashmir state. In my opinion, the applicant has Internal Flight Alternative. He is able to move to another state.

     The fact that Mr. Klagsbrun decided that the applicant had an internal flight alternative, namely that he could move to the state of Kashmir, was known to the applicant as he stated, at page 2 of his submissions in support of his landing application, that Mr. Klagsbrun had determined that he could relocate within India in the state of Kashmir. There would therefore appear to be little doubt that in the fall of 1996 or at the very least as of June 2, 1997, the applicant was fully aware of Mr. Klagsbrun"s decision. This, obviously, does not do much for his credibility.

[17]      Paragraph 4 of Mr. Mashkuri"s affidavit reads:

4.      I am also advised by Andrea Horton, and do believe that on December 30, 1997, Ms. Horton spoke with Giovanna Gatti, Acting Manager of the Post Determination Refugee Claimants in Canada Class ("PDRCC") unit with CIC in Toronto. I am advised by Ms. Horton and do believe that Ms. Gatti advised her of the following:

[18]      The respondent"s position is that a PDRCC kit would have been sent to the applicant with the Refugee Board"s decision dated July 10, 1995. In his affidavit, the applicant states that he never received this kit. In view of my finding concerning the applicant"s knowledge of the PDRCC decision, I see no reason why I should believe the applicant on this issue. On the evidence, I find that the respondent did provide to the applicant an opportunity to make submissions concerning the PDRCC class.

[19]      In any event, assuming that the applicant never received the PDRCC kit, he was certainly aware by early June 1997 that a negative PDRCC determination had been made. The applicant did nothing in regard to that determination until December 1997 and he has not provided a reasonable explanation as to why no steps were taken to challenge the PDRCC officer"s decision. Consequently, the applicant"s application to extend the time so as to allow him to file his application for leave and for judicial review could not be granted.

[20]      For these reasons, I was of the view that the applicant had not succeeded in convincing me that his application for judicial review raised a serious issue. As a result, I dismissed his motion for a stay of execution of the deportation order issued against him. I should perhaps add that I would have, in any event, dismissed the applicant"s stay application in view of my finding regarding his credibility. Specifically, the applicant, in my view, attempted to mislead the Court in taking the position that he only became aware of the PDRCC determination on December 29, 1997. The reality was that he had been aware of the PDRCC decision for quite some time. In those circumstances I would not, irrespective of the merit of the application, have been prepared to exercise my discretion in favour of the applicant. The applicant was obliged in making his stay application, to disclose all relevant facts in a fair and honest way. The applicant failed to do so and in my view that is a complete bar to the Court exercising its discretion in his favour.

[21]      Finally, the respondent did not ask for costs on this application. However, had I been so requested, I would have been prepared to allow costs to the respondent in view of the applicant"s attempt to mislead the Court.

[22]      In concluding, I wish to commend both Mr. Bagambiire and Ms. Horton for their excellent work under difficult circumstances.

     "MARC NADON"

     Judge

Ottawa, Ontario

January 16, 1998.