[2] Aftab and Ishrat entered Canada from the United States with their five children in December 2000. They claimed to be refugees from Pakistan. The Refugee Protection Division of the Immigration and Refugee Board determined that they were not Convention refugees within the meaning of the United Nations' Convention and were not persons otherwise in need of international protection. They sought leave from this Court to have that decision judicially reviewed. Leave was refused.
[3] They then did two things. They applied for a pre-removal risk assessment on the basis that the situation had worsened in Pakistan. That assessment was decided against them.
[4] They also requested that the Minister examine their circumstances and grant them permanent resident status or exempt them from applicable criteria because of humanitarian and compassionate (H & C) considerations "taking into account the best interests of a child directly affected or by public policy considerations" as provided in section 25 of the Immigration and Refugee Protection Act (2001, c. 27).
[5] In addition to the five minor children subject to the removal order, there is another child, Almas, born in Canada less than two years ago. She is a Canadian citizen and not subject to a removal order. However, it is obvious in the circumstances that if her parents leave, so will she.
[6] The H & C application was recently turned down. A notice of application for leave and judicial review has been filed. The Hussains' record is not yet due and so the Court was faced with rather sketchy information.
[7] The Hussains advance two main arguments why the removal order should be stayed. One is that the best interests of the children, particularly the Canadian-born child, were not taken into consideration. The other is that is was improper that they be sent back to the United States, as ordered, when they would rather, if they have to go at all, return directly to Pakistan.
[8] I granted the stay based on H & C considerations. I did not take into account that they would be removed to the United States.
[9] As mentioned at the hearing, I was concerned with the way Mr. Hussain's fear that the family would face economic hardship in Pakistan because he had no employment was treated by the decision-maker. She said: "There is no reason to believe that the applicant and his family would face such hardship should they leave Canada. Although there will be a period of adjustment for re-integration and finding employment, there is not evidence to support that the applicant will be unable to re-establish himself and find work in Pakistan. The applicant and his family arrived in Canada without any legal status, and have known since their arrival that their status in Canada was uncertain."
[10] Almas, who was born here in 2004, does not appear to have been taken into consideration at all. She is entitled to financial support which, since the Hussains' Canadian experience has been limited to Quebec, derives from articles 585 and following of the QuebecCivil Code.
[11] This is both a serious underlying issue and my basis for finding that there may be irreparable harm. The balance of convenience clearly favours the Hussains, and so I find that the tri-partite test for a stay as set forth in such cases as Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302has been met.
[12] There are a number of reasons why I did not take into account the Hussains' concern that they would be sent to the United States, rather than directly to Pakistan. They seem to think that they would be detained, and mistreated there. This is different from most claimants who allege concern of persecution in their homeland and would much rather go to the United States.
[13] The decision to send the Hussains to the United States was made by the removal officer. There is no underlying issue within the context of the Toth case because they have not yet sought leave and judicial review of that decision.
[14] The Immigration and Refugee Protection Regulations, SOR/2002-227, deal with the modalities of removal. Sections 235 and following provide that foreign nationals may voluntarily comply with their removal order. The officer must then determine if they have sufficient means to effect their departure to their intended destination. Apparently the Hussains are not in funds to pay their own way to Pakistan. If, as in this case, the removal order is to be enforced by the Minister, foreign nationals may be removed to one of four places: the country from which they came to Canada (United States) the country in which they last permanently resided before coming to Canada (Pakistan), the country of which they are a national or citizen (Pakistan) or the country of their birth (Pakistan).
[15] If removed to the United States, it is likely that the Hussains will be administratively detained for a while, if for no other reason than they say they do not have updated Pakistani passports. They are now on notice, and have time to do what they have to do in that regard.
[16] As to their arguments that their equality rights under the Charter have been violated (one law for rich unsuccessful refugees and another for poor unsuccessful refugees) and that the Minister has fettered his discretion as to where to remove a foreign national because of safe haven arrangements made with the United States, as they were not properly before the Court, it would be inappropriate to comment.
"Sean Harrington"
Ottawa, Ontario
November 29, 2005
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