Ali v. Canada (Minister of Citizenship and Immigration), 2005 FC 62

Date: 20050118

Docket: IMM-118-05

Citation: 2005 FC 62

BETWEEN:

                                             SHAUKAT ALI, SHAMINA BIBI ALI,

                           ZUBEENA FARHA SHAHNAZ, JAMSHEED RIZWAN ALI,

                                DILSHAD BEGUM and DILASHA SHAINA SHENAZ

                                                                                                                                           Applicants

                                                                         -and -

                                               THE MINISTER OF CITIZENSHIP

                                                          AND IMMIGRATION

                                                                                                                                        Respondent

                                                        REASONS FOR ORDER

PINARD J.

[1]                The Applicants' motion for a stay of their removal to Fiji, pending disposition of their application for leave and judicial review of the PRRA decision of Officer Sangha and pending the outcome of their H & C application, is dismissed for the following reasons:

1.          The Applicants have failed to establish the existence of a serious issue in this matter. First, in their memorandum of law and argument, the Applicants do not provide any basis to argue that a serious issue exists with the PRRA decision. They do not provide any argument as to what, if any, error was made by PRRA Officer Sangha whose decision, I find, is based upon serious elements of proof which were reasonably assessed by her. Secondly, there is no obligation to decide an H & C application prior to the removal of a person who is unlawfully in Canada (see, for example, Saibu v. Canada (M.C.I.), 2002 FCT 103; Simoes v. Canada (M.C.I.), [2000] F.C.J. No. 936).

2.          The Applicants have also failed to demonstrate that they will suffer irreparable harm. The risk to the Applicants upon their return to Fiji has been assessed twice: once by the RPD who found the Applicants not to be credible, and again by the PRRA officer who found that the Applicants would not be at risk if they were returned to Fiji. Furthermore, the PRRA officer found, based on country condition documents, that state protection would be available to the Applicants upon their return to Fiji. The Applicants have not challenged that finding. Finally, the fact that a removal would require the Applicants to leave Canada while the H & C application is outstanding does not, by itself, constitute irreparable harm (see Villareal v. Canada (M.C.I.), [1999] F.C.J. No. 1754 (TD)).

3.          In the circumstances, the balance of convenience favours the Respondent who has the statutory duty to execute removal orders as soon as reasonably practicable (Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 48(2)).

(Sgd.) "Yvon Pinard"

Judge

                                                             FEDERAL COURT

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          IMM-118-05

STYLE OF CAUSE:                          SHAUKAT ALI et al. v. THE MINISTER OF

CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                    Vancouver, BC

DATE OF HEARING:                      January 18, 2005

REASONS FOR ORDER:               PINARD J.

DATED:                                             January 18, 2005

APPEARANCES:

Mr. Mir Huculak                                                                       FOR APPLICANTS

Mr. Jonathan Shapiro                                                                FOR RESPONDENT

SOLICITORS OF RECORD:

Mir Huculak                                                                              FOR APPLICANTS

Barrister & Solicitor

Vancouver, BC

John H. Sims, Q.C.                                                                   FOR RESPONDENT

Deputy Attorney General of Canada