Date: 20100611
Docket: IMM-2205-10
Citation:
2010 FC 639
Ottawa, Ontario, June
11, 2010
PRESENT:
The Honourable Mr.
Justice Shore
BETWEEN:
ABDEL-KARIM
MUS EID
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
AND THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND
JUDGMENT
I. Preliminary
[1]
The
applicant adduces no established practice and no clear and explicit conduct or
assertion. There is no basis for his argument, so it is not a serious one.
[2]
Moreover,
section 113 of the Immigration and Refugee Protection Act, S.C. 2001, c.
27 (IRPA) clearly provides that a pre-removal risk assessment (PRRA) application
is to be considered on the basis of sections 96 to 98 of the IRPA.
Consequently, in a PRRA, the officer must assess risk allegations, not
humanitarian and compassionate considerations.
[3]
This
interpretation is consistent with the principles laid down by the Federal Court
of Appeal, which specified as follows in Varga v. Canada (Minister of
Citizenship and Immigration), 2006 FCA 394, [2007] 4 F.C. 3:
[9] Section 96
refers to a well-founded fear of persecution, and section 97 refers to a risk
of torture, and exposure to risks to life and of inhuman or of cruel and unusual
treatment or punishment. Only risks to applicants are relevant. A broad‑ranging
consideration of children’s interests is not contemplated by these provisions.
[10] This latter
exercise is properly conducted in the more open‑ended inquiry to be
undertaken in the course of an application under subsection 25(1) to remain in Canada on humanitarian
and compassionate grounds (H&C).
. . .
[12] Although the
same officer may sometimes make a PRRA and determine an H&C application,
the two decision-making processes should be neither confused, nor duplicated:
Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C.
164 (C.A.) at paras. 16-17; Rasiah v. Canada (Minister of
Citizenship and Immigration), 2005 FC 583 at para. 16. [Emphasis added.]
[4]
In
the absence of any evidence on the subject, the officer could not disregard the
negative credibility finding of the Immigration and Refugee Board:
[19] It is well
settled that the purpose of an assessment of the risks of returning is not to
give applicants a right to appeal the RPD’s decision or to have the evidence
reassessed by the PRRA officer or by this Court. The RPD’s findings of fact
therefore became res judicata once the Court dismissed the
applicants’ leave application challenging the RPD's decision (Danyluk v.
Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, at
paragraph 24; Angle v. Canada (Minister of National Revenue -
M.N.R.), [1975] 2 S.C.R. 248, at page 254). [Emphasis added.]
(Roberto v. Canada (Minister of
Citizenship and Immigration, 2009 FC 180, [2009] F.C.J. No. 212
(QL)).
II. Judicial procedure
[5]
On
April 21, 2010, the applicant filed an application for leave and judicial review
(ALJR) in respect of the pre-removal risk assessment officer’s decision dated
February 24, 2010.
[6]
In
that decision, the officer dismissed the applicant’s PRRA application.
[7]
Along
with this ALJR, the applicant filed a motion for the stay of his removal to Jordan on May 21,
2010.
III. Preliminary remarks
[8]
Given
the coming into force of the Department of Public Safety and Emergency
Preparedness Act, S.C. 2005, c. 10, the Minister of Public Safety and
Emergency Preparedness, who is responsible for carrying out removals in
accordance with Order in Council P.C. 2005-0482 of
April 4, 2005, should be named as a respondent.
[9]
The
style of cause is amended in order to add as respondent the Minister of Public
Safety and Emergency Preparedness, in addition to the Minister of
Citizenship and Immigration.
[10]
The
applicant’s motion record does not include a copy of the decision in respect of
which he is attempting to raise a serious issue.
[11]
Under
paragraph 364(2)(f) of the Federal Courts Rules, SOR/98-106, a moving
party’s motion record must include “any other filed material that is necessary
for the hearing of the motion.” In a stay motion, this necessarily includes a
copy of the decision in respect of which the applicant is required to
raise a serious issue.
[12]
This
Court has frequently stated that a moving party’s failure to include a copy of
the impugned decision in his or her motion record is, in itself, a sufficient
basis for refusing to find that a serious issue has been raised (Bayavuge v. Canada (M.C.I.), IMM-1492-07, April 17, 2007, per Justice
Pierre Blais).
[13]
In
the case before me, the applicant’s application for leave states that he
received the reasons for the PRRA decision on April 12, 2010. He has
therefore had ample time to prepare his motion record, and nothing justifies
his failure to include the impugned decision.
[14]
The
applicant has not given the Court the documents necessary for the hearing of
his motion. This is in violation of the Court’s rules of practice, is
prejudicial to the respondents, and runs counter to professional courtesy and
etiquette, without which justice cannot properly be administered.
[15]
The
Court could therefore make a determination that there is no serious issue on the
basis of the motion record. Accordingly, his stay motion can be dismissed on
this ground alone.
[16]
It
is not the respondents’ role to correct the deficiencies in an applicant’s motion
record.
[17]
However,
as officers of justice, and to facilitate the Court’s task, the respondents have
added a copy of the PRRA decision to the respondents’ record.
V. Background
[18]
The
applicant, Abdel-Karim Mus Eid, is a Jordanian citizen. His wife, his daughter
and one of his sons are in Jordan. His other four sons live in the United
States, Germany,
Saudi Arabia and Egypt, respectively.
[19]
Starting
in 1975, the applicant was in Saudi Arabia, where he worked on
various construction jobs for the U.S. Army. As early as 1990, he was allegedly
notified by fundamentalists that his work was an offence against Muslims, and
was allegedly the victim of a few incidents of sabotage.
[20]
In
2000 and 2001, the applicant travelled to Switzerland, Sweden and Germany.
[21]
In
July 2002, the applicant returned to Jordan, where he carried out transportation
and business activities. Among other things, he allegedly worked for U.S. Army
procurement in 2003. Following these activities, the Al-Takfir group allegedly
accused him of collaborating with the Americans, and one of his drivers was
allegedly beaten to death.
[22]
Visa
in hand, Abdel-Karim Mus Eid arrived in Canada on October
16, 2005, to explore business opportunities.
[23]
It
was not until September 21, 2006, roughly a year after his arrival, that the
applicant filed a refugee protection claim.
[24]
In
his claim, Abdel-Karim Mus Eid alleged that he was wanted by the Al-Takfir
group, which allegedly falsely accused him of collaborating with the U.S. Army.
He also alleged that a fatwa had been issued against him on
September 19, 2006.
[25]
The
refugee claim was heard by the Refugee Protection Division (RPD) on
April 24, 2008. Abdel-Karim Mus Eid was represented by counsel at the
hearing.
[26]
On
May 30, 2008, the claim was dismissed. The RPD determined that Abdel-Karim Mus
Eid’s narrative was not credible. This finding was based on several elements,
including his vague and imprecise testimony, particularly with respect to the
person who allegedly notified his wife that there was a fatwa against him, and
the inability to obtain that document.
[27]
The
RPD also found that Abdel-Karim Mus Eid’s conduct did not show a genuine fear
of persecution because he did not claim protection on any of his trips to
Europe, waited a year before claiming protection in Canada, and
testified that he chose Montréal in order to pursue business projects in
greater depth.
[28]
The
RPD therefore found that the narrative was not credible and that Abdel-Karim
Mus Eid had not meet his burden of proof. It therefore rejected his claim.
[29]
On
June 23, 2008, Abdel-Karim Mus Eid filed an ALJR against the RPD decision (Docket No. IMM-2801-08).
Justice Yves de Montigny dismissed that ALJR on September 23, 2008.
[30]
On
December 23, 2008, Abdel-Karim Mus Eid’s PRRA application was received,
followed by his submissions on January 8, 2009, and by his supporting
documents on January 14, 2009.
[31]
On
February 24, 2010, Abdel-Karim Mus Eid’s PRRA application was dismissed by
the officer. On April 12, 2010, he was notified of the officer’s
decision to that effect, and was informed at that time that his departure from Canada was
scheduled for May 24, 2010.
[32]
At
a meeting on departure preparations, held on May 3, 2010, Abdel-Karim Mus
Eid told the officer that he had obtained his own plane ticket, thereby postponing
his departure for Jordan to June 18, 2010.
VI. Issue
[33]
Has
the applicant met the three tests necessary for the Court to grant a stay of
the removal order?
VII. Analysis
[34]
In
order to obtain a judicial stay of the enforcement of a removal order, an
applicant must meet the following three cumulative tests, which were laid down in
Toth v. Canada (Minister of Employment and Immigration) (1988), 86
N.R. 302 (F.C.A.) and have constantly been applied since:
A. the existence
of a serious issue;
B. the existence
of irreparable harm; and
C. the weighing of
the balance of convenience.
A. Serious
issue
[35]
The
applicant must show that his application is neither frivolous nor vexatious. To
this end, the merits of the case must be examined preliminarily to determine
whether an issue worthy of consideration is raised:
[18] The applicant must
demonstrate the presence of one or more serious issues that have reasonable
chances of succeeding in the underlying proceeding. The standard for what
constitutes a serious issue is generally that of an issue that is not frivolous
or vexatious (see Sowkey v. The Minister of Citizenship and Immigration,
2004 FC 67; Fabian v. Le ministre de la Sécurité publique et de la
protection civile, 2009 CF 425, at paragraphs 38 to 41). However, the word
“serious” requires a little bit more; the merits must be examined to ensure
that the issue has a chance of succeeding (see Wang v. Canada (M.C.I.),
[2001] 3 F.C. 682, at paragraph 11).
(Mejia v. Canada (Minister of
Citizenship and Immigration), 2009 FC 658, [2009] F.C.J. No. 824
(QL)).
[36]
The
Court agrees with the respondents’ position.
[37]
The
issues raised by Abdel-Karim Mus Eid in his submissions regarding the PRRA
decision do not constitute a serious issue.
[38]
The
officer entertaining a PRRA application must analyze the evidence and the
applicant’s situation to determine whether removal would subject him to a danger
of torture or persecution or to a risk to his life or to a risk of cruel and
unusual treatment or punishment (El Morr v. Canada (Minister of Citizenship and Immigration),
2010 FC 3, [2010] F.C.J. No. 16 (QL) at para. 22; Cen v. Canada (Minister
of Citizenship and Immigration), 2008 FC 337, 167 A.C.W.S. (3d) 138 at
para. 4).
[39]
It
is well settled that the burden is on the applicant to submit evidence in
support of his allegations:
[12] Generally, the
Federal Court of Appeal and this Court have stated on many occasions that the
onus is on the applicant to submit evidence on all the elements of his or her
application. Specifically, on a PRRA application, it is settled law that the
applicant bears the burden of providing the PRRA officer with all the evidence
necessary for the officer to make a decision (Cirahan v. Canada
(Solicitor General), 2004 FC 1603, [2004] F.C.J. No. 1943 (QL) at paragraph
13). [Emphasis added.]
(Lupsa v. Canada (Minister of
Citizenship and Immigration)), 2007 FC 311, 159 A.C.W.S. (3d) 419).
[40]
The
analysis of the evidence is within the PRRA officer’s special expertise. It is
therefore the officer’s role to analyze the documents submitted and determine
what weight they should be given:
[17] It is well settled
that as the decision-maker it is the PRRA officer’s function to determine
the weight that should be given to testimony and documentary evidence filed in
support of an application (Singh v. Canada (Minister of Citizenship and
Immigration), [1996] F.C.J. No. 1329 (QL), para. 3).
(Diallo v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1063, 317 F.T.R. 172).
[41]
In
his PRRA application, Abdel-Karim Mus Eid primarily cited the degree of his
establishment in Canada, the humanitarian and compassionate considerations
in his record, and the unusual and undeserved or disproportionate hardship that
he would face if he were required to apply for permanent residence from outside
Canada.
[42]
The
applicant repeated the narrative given in support of his refugee protection
claim, namely, that he was purportedly threatened by fundamentalists due to his
cooperation with the U.S. Army, and that a fatwa had allegedly been issued
against him.
[43]
The
applicant added that he feared the authorities and “Jordan’s Muslim
Brotherhood”, and specified that a judgment was rendered against him for a [translation] “religious crime” on
June 23, 2008.
[44]
In
support of his application, Abdel-Karim Mus Eid submitted several
documents, all of which the officer considered in great detail.
[45]
A
reading of the reasons for his decision shows that the officer closely examined
all the evidence submitted to him.
[46]
The
officer noted that, in his PRRA application, Abdel-Karim Mus Eid was repeating
the account that he had given to the RPD, which determined that it was not
credible (decision affirmed by the Federal Court). The only new elements in the
PRRA were the allegations that he was wanted by the authorities and by “Jordan’s Muslim
Brotherhood” by reason of the judgment dated June 23, 2008.
[47]
With
respect to the allegations regarding Abdel-Karim Mus Eid’s degree of
establishment in Canada, and the humanitarian and compassionate considerations
applicable to him, the officer noted two things: the applicant did not submit
any application for permanent residence in Canada based on
humanitarian and compassionate considerations; and those considerations were in
no way relevant in a PRRA application.
[48]
Consequently,
the officer stated that those allegations would not be considered.
[49]
With
regard to the documents adduced in support of the application, the officer considered
each of them, and provided clear and reasonable grounds for the weight accorded
to each item of evidence.
[50]
Two
documents adduced in evidence, namely, the CNN article and a death certificate
dated December 6, 2004, pre-date the RPD decision. The officer found
that Abdel-Karim Mus Eid did not provide any explanation for his failure
to submit these documents in support of his refugee claim. In addition,
nothing in the death certificate ties that certificate to Abdel-Karim Mus
Eid.
[51]
Consequently,
in accordance with paragraph 113(a) of the IRPA, these documents, which
pre-date the RPD’s decision, were not analyzed. That decision is consistent
with the principles laid down by this Court.
[52]
Two
of the documents submitted by Abdel-Karim Mus Eid were not relevant to his
allegations, namely, the copy of a real property registration (under his name
and that of his wife) and a copy of a document called “The Islamic Group
(Expiatory & Expatriation)”. The latter document is an incomplete
translation which identifies neither the source nor the publication date of the
original. Moreover, it is in no way personal or specific to Abdel‑Karim Mus Eid.
[53]
Accordingly,
the officer attached very little weight to these two documents.
[54]
The
officer then examined the other documents submitted by Abdel-Karim Mus Eid
in support of his new risk allegations. First, the officer properly
noted that Abdel-Karim Mus Eid had submitted no original documents. Although
the documents are marked [translation]
“True Copy”, the version of the document of which they are a copy is not
specified. Moreover, the same person who affixed the [translation] “True Copy” seal did all the translations.
[55]
For
all these reasons, the officer stated that it was very difficult to determine
the reliability of the source of those documents and that their probative value
was undermined as a result.
[56]
Second, the officer
examined each of the documents closely and then stated, in a clear and detailed
fashion, why little probative value was accorded to them:
- “Arrest Warrant and
Arraignment”: The warrant’s date is not
specified; the issue date of the document is not specified; no offence is
referred to; there is no reference to a case number; and the applicant
provided no indication of how he might have obtained the document.
- Document issued by
the Public Security Directorate: The document refers
to two alleged petitions (one of which pre-dates the RPD decision) without
specifying their contents; the petitions were not attached, and the date
on which the Directorate issued the document is not specified.
·
“Judgment”: This
document states that the applicant was accused of a “crime of religious
empathy” under section 326 of the Penal Code, but according to the
objective documentary evidence, that provision has nothing to do with religious
crimes; rather, it is about murder, and provides that [translation] “anyone who deliberately kills a human being
will be punished by 15 years of forced labour”; moreover, the judgment was
supposedly rendered in absentia after notice was sent to the
applicant’s residence (the documentary evidence also shows that a judgment
was rendered in absentia after notification procedures); and yet the
applicant did not adduce any notification documents, or specify who, at his
residence, was notified or when or whether he was advised of the notification;
in addition, the document is missing very basic information and contains no
particulars of the alleged offence (date, place and acts).
·
“Request
by Public Prosecutor”: This document states that the applicant must
be found so that the sentence can be carried out, but there is no evidence
establishing the existence of a fatwa, the June 2008 judgment, or the
petitions.
·
Document
from Shadi Abdel Karim Musa Eid: Apparently, this individual brought a
complaint against bearded religious fanatics who purportedly conducted
surveillance of this individual’s house; however, the document does not bear
the complainant’s signature and does not state the place where the complaint
was filed, and the applicant did not specify who the complainant is.
·
Incident
report document from the applicant’s wife: The applicant’s wife
apparently filed a complaint following an attack on her home by bearded men who
were looking for her husband; however, the document bears no signature and does
not specify who are the people named therein, what their relationship to his
wife is, and how they were informed of the event.
(Applicant’s Record, Exhibits “A” through “E”
to the Affidavit).
[57]
In
addition, after analyzing the situation in Jordan, the officer
concluded that no significant change had occurred following the RPD’s decision
and that the evidence disclosed no personal risk to Abdel-Karim Mus Eid.
[58]
Abdel-Karim
Mus Eid
provided no probative evidence in support of his allegations.
[59]
The
decision evinces a highly thorough and solid analysis of each item of evidence.
The officer clearly exposed the flaws of each document and explained why
so little probative weight could be attached to them. All the documents were
considered.
[60]
The
officer was entitled to weigh the evidence using his specialized expertise, and
he provided reasons explaining the weight given to each item of the evidence. This approach
is in keeping with the principles laid down by the Court:
[28] Bearing in mind
what is stated above regarding paragraph 113(a) of the IRPA and the
Raza judgment (supra) of the Court of Appeal, I note that the
PRRA officer took the time to analyze the documentation submitted in support of
the PRRA application and that he explained in detail his findings in regard to
its probative value (the credibility of the evidence, while considering the
source and the circumstances surrounding the existence of the information, its
trustworthiness, its element of novelty and its high degree of importance).
He did so by taking into consideration not only the date of the information but
also the aspect of novelty or lack thereof with reference to the evidence
before the RPD, the RPD’s findings and whether or not the information was
available at the time of the RPD hearing as well as whether or not it was
reasonable to expect that she present this information to the RPD. An
analysis such as this satisfies the standards contained under
paragraph 113(a) of the IRPA and the Court has no reason to
intervene because the PRRA officer’s decision was reasonable. Officer
Perreault considered the relevant information and he made the appropriate
determinations considering the circumstances of the matter.
[29] I would add, as it
had been mentioned in Colindres, supra, in circumstances similar to this
case, that the fact that the applicant disagrees with the findings of the
PRRA officer does not render the PRRA officer’s decision unreasonable. In
my opinion, the applicant in her submissions is in reality asking the Court to
substitute its assessment of the evidence for the assessment made by the
officer. This is not the Court’s role at this stage of the applicant’s file
(Gonzalez v. Canada (Minister of Citizenship and Immigration),
[2006] F.C.J. No. 1592, 2006 FC 1274 at paragraph 17; Maruthapillai
v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No.
761 at paragraph 13). [Emphasis added.]
(Abdollahzadeh v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1310, 325 F.T.R. 226).
[61]
There
is no error in the officer’s decision. Abdel-Karim Mus Eid had to show
that he would be subject to a danger of torture or persecution or to a risk to
his life or to a risk of cruel and unusual treatment or punishment. He did not.
He failed to meet his burden, and adduced no probative evidence in support of
his allegations. As the Court has pointed out:
[34] A PRRA
application is still an exceptional measure that should not be allowed
unless there is new evidence that was not available at the time of the RPD’s
decision and then only insofar as this new evidence establishes a risk
for the applicant if he were to return to his country of origin.
(Sani v. Canada (Minister of
Citizenship and Immigration), 2008 FC 913, [2008] F.C.J. No. 1144
(QL)).
[62]
In
his memorandum, Abdel-Karim Mus Eid raises no serious issue in relation to
the officer’s decision.
[63]
Firstly, he submits
that the officer should have analyzed the humanitarian and compassionate
grounds in support of his PRRA application, and that he had a legitimate
expectation that the grounds he raised would be taken into consideration.
[64]
However,
he does not specify the conduct or assertion that gave rise to his legitimate
expectation. In Canadian Union of Public Employees,
the Supreme Court of Canada defined the doctrine
of legitimate expectation as follows at paragraph 131:
[131] The doctrine of legitimate expectation is “an extension of
the rules of natural justice and procedural fairness”: Reference re
Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, at p. 557.
It looks to the conduct of a Minister or other public authority in the exercise
of a discretionary power including established practices, conduct or
representations that can be characterized as clear, unambiguous and
unqualified, that has induced in the complainants (here the unions) a
reasonable expectation that they will retain a benefit or be consulted before a
contrary decision is taken. To be “legitimate”, such expectations must
not conflict with a statutory duty. See: Old St. Boniface
Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170; Baker, supra;
Mount Sinai, supra, at para. 29; Brown and Evans, supra,
at para. 7:2431. Where the conditions for its application are
satisfied, the Court may grant appropriate procedural remedies to respond to
the “legitimate” expectation.
(C.U.P.E. v. Ontario (Minister of
Labour),
[2003] 1 S.C.R. 539, 2003 SCC 29).
[65]
In
a recent matter, this Court reiterated that that an officer need not consider
humanitarian and compassionate considerations in a PRRA application:
[32] The
case law is clear: humanitarian or compassionate considerations need not to be
considered in a pre-removal risk assessment. In Kim v. Canada (Minister of Citizenship and Immigration), 2005 FC 437, [2005] F.C.J. No. 540
(QL) at para. 70, Justice Mosley noted the following:
By the same logic, I find that PRRA
officers need not consider humanitarian and compassionate factors in making
their decisions. There is no discretion afforded to a PRRA officer in making a
risk assessment. Either the officer is satisfied that the risk factors alleged
exist and are sufficiently serious to grant protection, or the officer is not
satisfied. The PRRA inquiry and decision-making process does not take into
account factors other than risk. In any case, there is a better forum for the
consideration of humanitarian and compassionate factors: the H&C
determination mechanism. I do not find that the officer erred in law by
refusing to consider humanitarian and compassionate factors in the context of
the PRRA decision.
See also Sherzady v. Canada (Minister of Citizenship and Immigration),
2005 FC 516, 273 F.T.R. 11, [2005] F.C.J. No. 638
(QL) at para. 15; Covarrubias v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1193, 279 F.T.R. 24, [2005] F.C.J. No. 1470
(QL) at paras. 34 to 38; Kakonyi v. Canada (Minister of
Public Safety and Emergency Preparedness), 2008 FC 1410, [2008] F.C.J. No. 1807
(QL) at para. 37.
…
[34] Consequently,
I find that no reviewable error has been made by the Officer in refusing to
consider the evidence based on humanitarian and compassionate factors offered
by the Applicant.
[35] The
fundamental problem in this case is that the Applicant has confused a
pre-removal risk assessment under section 112 of the Act and a request for
exemption on humanitarian and compassionate grounds under section 25 of the Act. This confusion has resulted in the Applicant submitting an odd pre‑removal
risk assessment application. The Officer in this case carried out a risk
assessment on the basis of the information which the Applicant provided. Any alleged
failure to assess risk is of the Applicant's own making. [Emphasis added.]
(Mandida v. Canada (Minister of
Citizenship and Immigration), 2010 FC 491).
[66]
In
the present case, Abdel-Karim Mus Eid did not file an application for
permanent residence based on humanitarian and compassionate considerations, and
he would have needed to do so in order for such considerations, and his
establishment in Canada, to be examined.
[67]
Secondly, Abdel-Karim
Mus Eid submits that the officer unjustifiably rejected the evidence because
originals were not produced.
[68]
It
is clear, from the reasons for decision, that each of the documents was
carefully examined and that no evidence was rejected solely because the
original had not been submitted. The officer raised several other problems
regarding the documents (incomplete translation, missing date, irrelevant
document, fundamental information missing from the document, etc.) (Exhibit “A”:
PRRA decision, at pages 4-7).
[69]
The
contention that the officer rejected the evidence simply because originals were
not adduced is incorrect. Thus, there was no error on the officer’s part here. As
this Court has stated:
[31] It is obvious that
the officer considered and commented on every document submitted by the
applicant. The Officer was entitled to award very little (or no) probative
value to the letters written by interested parties. Indeed, the
evaluation of the evidence submitted comes wholly within her jurisdiction, and
should be considered with deference: Morales Alba v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1116, at para. 36; Chakrabarty v.
Canada (Minister of
Citizenship and Immigration), 2008 FC 695, at paras. 10-14; Chang v. Canada (Minister of
Citizenship and Immigration), 2006 FC 157, at para. 37.
(Obeng v. Canada (Minister of
Citizenship and Immigration), 2009 FC 61, 325 F.T.R. 143 at paragraphs
36-38).
[70]
It
must also be remembered that the assessment of evidence comes within the
officer’s expertise, and that it is an officer’s responsibility to examine the
evidence and determine the probative weight to be given to it. This Court has
stated:
[21] As this Court has found that
“it was within the purview of the officer to consider the evidence and weigh
its probative value, […] I can find nothing wrong with the officer’s decision
to conclude that the document in question was of little probative value” (Hassabala,
above, para. 27).
(Faiz v. Canada (Minister of
Public Safety and Emergency Preparedness), 2009 FC 833; [2009] F.C.J.
No. 963 (QL)).
[71]
In
a judicial review, it is not this Court’s role to re-examine the evidence and
substitute its opinion for that of the officer. Abdel-Karim Mus Eid’s
disagreement with the analysis does not warrant the Court’s intervention:
[39]
Since the RPD rejected their refugee protection claim, the applicants have
submitted no new evidence or facts that would have supported the alleged
personal risks. It was up to the PRRA officer to determine the weight to be
attached to the various pieces of evidence filed in support of the PRRA
application, including the letters of support (Singh v. Canada (Minister
of Citizenship and Immigration), [1996] F.C.J. No. 1329 (QL) at paragraph
3; Diallo v. Canada (Minister of Citizenship and Immigration), 2007
FC 1063 at paragraph 17, and Malhi v. Canada (Minister of
Citizenship and Immigration), 2004 FC 802 at paragraph 6). The PRRA officer
did not err in the assessment of that evidence. In their claims, the applicants
are essentially expressing their disagreement with the PRRA officer’s findings.
In my opinion, the applicants have not demonstrated in what way these findings
pertaining to the risks to their lives and safety were unreasonable.
Consequently, the Court’s intervention is not warranted.
[40] Despite
the lack of new evidence and facts, the PRRA officer conducted an analysis of
the contemporaneous documentary evidence on the situation in Nigeria. The task of weighing this
evidence and attaching more weight to evidence from sources that she believed
to be more reliable and credible than to other evidence was the responsibility
of the PRRA officer, after a thorough examination of that evidence. I am of
the opinion that the PRRA officer made no errors in her assessment of that
evidence. [Emphasis added.]
(Obidigbo v. Canada (Minister of
Citizenship and Immigration), 2008 FC 705, 329 F.T.R. 205).
[72]
Thirdly, Abdel-Karim
Mus Eid asserts that it is plausible that he did not have the means to prove
that a fatwa had been issued against him.
[73]
His
allegations about the issuance of a fatwa and the impossibility of producing
the document were examined by the RPD, which deemed them not credible
(decision affirmed by the Federal Court). No new evidence was brought
before the officer in relation to the alleged fatwa.
[74]
Abdel-Karim
Mus Eid
has shown no error in the officer’s analysis, but is speculating about the
plausibility of being unable to file a copy of the fatwa.
[75]
In
light of the foregoing, the applicant has not met his burden of showing that
there is a serious issue in relation to the PRRA decision.
[76]
In
order for the Court to allow the applicant’s motion for a stay, Abdel-Karim Mus
Eid would need to show that he has reasonable chances of success in his principal
proceeding, namely, the ALJR against the PRRA. He has not, and so the motion should
be dismissed on this ground alone:
[36] I am not
persuaded that Mr. Cardoza Quinteros has raised any serious issue that would
warrant the grant of a stay of the removal order. Having failed to meet one
of the branches of the tripartite test, this application for a stay will be
dismissed. It is not necessary that I examine whether the Applicant has met
the other two branches of the Toth tripartite test. [Emphasis added.]
(Quinteros v. Canada v. Canada (Minister of
Citizenship and Immigration), 2008 FC 643, [2008] F.C.J. No. 812
(QL)).
B. Irreparable harm
[77]
In
Kerrutt v. Canada (Minister of
Employment and Immigration), [1992] F.C.J. No. 237 (QL), 53 F.T.R. 93,
this Court defined the concept of irreparable harm as the return of a person to
a country where his or her safety or life is in jeopardy. In the
same decision, the Court held that mere personal inconvenience or family breakup
is insufficient.
[78]
This
decision has been followed several times, notably in Calderon v. Canada
(Minister of Citizenship and Immigration), [1995] F.C.J. No. 393 (QL),
92 F.T.R. 107, where the Court held as follows with respect to the definition
of irreparable harm from Kerrutt, above:
[22] In Kerrutt v.
M.E.I. (1992), 53 F.T.R. 93 (F.C.T.D.) Mr. Justice MacKay concluded
that, for the purposes of a stay application, irreparable harm implies the
serious likelihood of jeopardy to an applicant's life or safety. This is a very strict test and I accept its premise that irreparable
harm must be very grave and more than the unfortunate hardship associated with
the breakup or relocation of a family. [Emphasis added.]
[79]
Abdel-Karim
Mus Eid
bears the onus of submitting clear evidence of the harm that he alleges:
[23] The evidence in
support of harm must be clear and non-speculative. (John v. Canada
(Minister of Citizenship and Immigration), [1999]
F.C.J. No. 915 (QL); Wade v. Canada (Minister of Citizenship and
Immigration), [1995] F.C.J. No. 579
(QL).)
. . .
[25] Moreover, to
demonstrate irreparable harm, the Applicants must demonstrate that if removed
from Canada, they would
suffer irreparable harm between now and the time at which any positive
decision is made on their application for leave and for judicial review.
The Applicants have not done so. (Reddy v. Canada (Minister of Citizenship
and Immigration), [1999] F.C.J. No. 644
(QL); Bandzar v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 772 (QL); Ramirez‑Perez
v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 724 (QL).)
[Emphasis added.]
(Adams v. Canada (Minister of Citizenship and
Immigration), 2008 FC 256, [2008] F.C.J. No. 422 (QL)).
[80]
Abdel-Karim
Mus Eid
has not shown that he would be irreparably harmed if returned to Jordan.
[81]
Firstly, the
applicant alleges that his removal would contravene the Canadian Charter of
Rights and Freedoms, Part I, Schedule B to the Canada Act
1982 (1982, c. 11) (U.K.) (the Charter) and other international conventions
of which Canada is a signatory.
[82]
This
Court has frequently held that the removal of a person to his or her country of
origin following a complete assessment of the risks (which was done in this
case) does not contravene the Charter or Canada’s
international obligations:
[translation]
[38] The Court addressed
this point in the following terms in the context of a stay motion:
[37] It is clearly established in case law that the removal of a person from
Canada is not contrary to the principles of natural justice and that the
enforcement of a removal order is not contrary to sections 7 and 12 of the
Charter. (Canada (Minister of Employment and Immigration) v.
Chiarelli, 1992 CanLII 87 (S.C.C.),
[1992] 1 S.C.R. 711, at pages 733-735; Medovarski v. Canada
(Minister of Citizenship and Immigration), 2005
SCC 51 (CanLII), [2005] 2 S.C.R. 539 at paragraph 46; Isomi
Canada (Minister of Citizenship and Immigration), 2006 FC 1394 (CanLII), 2006 FC 1394,
[2006] F.C.J. No. 1753 (QL), at paragraph 32 (Simon Noël J.).)
(Salazar v. Canada (Ministre de la
Sécurité publique et la protection civile), 2009 CF 56, [2009] F.C.J.
No. 77).
[83]
Secondly, Abdel-Karim
Mus Eid alleges that his life and safety would be in danger because there is a
fatwa against him, as well as a judgment for a religious crime.
[84]
These
risk allegations have already been assessed and rejected by the RPD (decision affirmed
by the Federal Court) and by the officer. The RPD found that Abdel-Karim Mus Eid’s
narrative was not credible, and that he had not met his burden of proof. The
officer found that the documents tendered in evidence by Abdel-Karim Mus Eid did
not substantiate his allegations. He did not tender any other evidence in this
Court to substantiate his allegations.
[85]
It
is well settled that risk allegations that have already been assessed and
determined to be unfounded cannot constitute irreparable harm for the purposes
of a stay motion. The same narrative proposed to this Court, with no supporting
evidence whatsoever, cannot show irreparable harm:
[42] The remarks of this Court in
this regard are relevant:
[55] The risks of return were
already assessed in two administrative proceedings, by the panel and by the
officer, and both made the same findings. Further, this Court confirmed the
reasonableness of the Board’s decision refusing the ALJR against the Board’s
decision. Since the order of this Court, the situation has not changed, as the
PRRA confirmed.
[56] This Court has often held
that allegations of risk determined to be unfounded by both the Board and the
PRRA cannot serve as a basis for establishing irreparable harm in the context
of an application to stay (Singh v. Canada (Minister of Citizenship and Immigration), 2005 FC 145, 137 A.C.W.S. (3d) 156). This principle
relative to credibility is adaptable in the context of the failure to reverse
the presumption of state protection. [Emphasis added.]
(Malagon, above; also,
Javier, above, at paras. 15-16).
(Rodriguez v. Canada (Minister of
Public Safety and Emergency Preparedness), 2009 FC 423, [2009] F.C.J. No. 540
(QL)).
[86]
Thirdly, Abdel-Karim
Mus Eid submits that he risks being detained arbitrarily upon his arrival in Jordan, due to the
fatwa issued against him and the judgment convicting him of a religious crime.
His arguments are based on the objective documentary evidence concerning
the situation in Jordan, which he has attached to his record.
[87]
Abdel-Karim
Mus Eid’s allegation that he would be detained upon arriving in Jordan is
speculative. No document in his record supports this assertion. The RPD, and,
subsequently, the officer, found the allegations regarding the fatwa to be
unfounded. Similarly, the officer concluded that nothing in the evidence showed
that the applicant had actually been convicted of a religious crime.
[88]
Abdel-Karim
Mus Eid
relies on the general evidence regarding the situation in Jordan, but does
not tie it to his personal situation.
[89]
This
general documentary evidence provides an overall portrait of the country by
exploring various aspects such as the electoral process, conditions of
detention, freedom of the press, official corruption, discrimination against
women, the monarchy, the possibility of arresting an individual and detaining
the individual for 48 hours without a warrant, the situation involving Palestinian
non-citizens who do not have Jordanian citizenship, etc. (Applicant’s Record,
Exhibit “G” to the Affidavit).
[90]
This
evidence does not show that Abdel-Karim Mus Eid would suffer irreparable harm
upon being returned to his country, nor is it a basis for believing that he
would be arrested upon his arrival at the airport. This is conjecture, and, as
the Court has stated:
[32] The evidence in support of
irreparable harm must be non-speculative and credible. There must be a high
degree of probability that the harm alleged will occur if the stay is not
granted (Radji v. Canada (Minister of Citizenship and Immigration), 2007 FC 100, 308 F.T.R. 175
at para. 40; Selliah v. Canada (Minister of Citizenship and Immigration), 2004 FCA 261, 132 A.C.W.S.
(3d) 457 at para. 13). [Emphasis added.]
(Simuyu v. Canada (Minister of
Citizenship and Immigration), 2009 FC 41, [2009] F.C.J. No. 53
(QL)).
[91]
The
documents submitted by Abdel-Karim Mus Eid do not show that there is a high
degree of probability that the harm alleged will occur. There is no clear and
convincing evidence before the Court.
[92]
Lastly, Abdel-Karim
Mus Eid submits that it is unfair for him to be deported from Canada when the
ALJR against the PRRA has not been decided. That argument is without merit.
[93]
The
Federal Court of Appeal has established that removal prior to a decision on the
judicial review application underlying the stay motion does not, in and of
itself, constitute irreparable harm (El Ouardi v. Canada (Solicitor General),
2005 FCA 42, 137 A.C.W.S. (3d) 161 at paragraph 8; Palka v. Canada
(Minister of Public Safety and Emergency Preparedness, 2008 FCA 165, 167
A.C.W.S. (3d) 570 at paragraph 20).
[94]
Moreover,
neither the IRPA nor the Immigration and Refugee Protection Regulations,
SOR/2002-227 (the Regulations) provide for a stay pending a decision on an ALJR
in respect of a PRRA. As this Court has specified:
[28] In
addition, it was clearly not the intent of Parliament to allow all negative
PRRA recipients to remain in Canada, pending the outcome of any litigation related to their PRRA
decisions. Parliament chose to provide a statutory stay of removal pending the
outcome of an application for leave of a negative refugee decision by the RPD.
Parliament further envisioned statutory stays in certain specified circumstances
related to PRRAs, as set out in R. 232 of Immigration and Refugee Protection
Regulations, SOR/2002-227 (Regulations), none of which included applications
for leave challenging negative PRRA decisions. (Regulations, ss. 231-232.)
[29] Parliament
clearly intended that persons, whose PRRA applications had been rejected, could
be removed. This is also consistent with s.48 of the IRPA, which provides that
the Minister is obligated to effect valid removal orders as soon as practically
possible. Any other interpretation would place the rights of a PRRA applicant,
ahead of the legal obligation on the Minister, rights and obligations which
Parliament has intentionally balanced through the statutory provisions in IRPA.
(Paul v. Canada (Minister of
Citizenship and Immigration), 2007 FC 398, 310 F.T.R. 307).
[95]
Nothing
in Abdel-Karim Mus Eid’s record constitutes clear and convincing evidence of
harm. The stay motion must therefore be dismissed:
[71] The applicant has
not discharged his burden of demonstrating that he will suffer irreparable harm
by being removed to the Dominican Republic. The application for a stay must therefore
be dismissed:
[TRANSLATION]
[38] The applicants have adduced
no evidence of personal risk should they return to Mexico.
[39] The absence of evidence as to
the existence of irreparable harm is sufficient in and of itself to dismiss
the stay application.
(Alba v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1116, [2007] F.C.J. No. 1447 (QL)).
(Fabian v. Canada (Minister of
Citizenship and Immigration), 2009 FC 424, 345 F.T.R. 250).
C. Balance of convenience
[96]
In
the absence of a serious issue and irreparable harm, the balance of convenience
favours the public interest in ensuring that the immigration process provided
for in the IRPA follows its course. As this Court has noted:
[33] The
Federal Court of Appeal has confirmed that the Minister’s obligation 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, above, para. 22.)
[34] In the present
case, the Applicant seeks extraordinary equitable relief. It is trite law that
the public interest must be taken into consideration when evaluating this last criterion.
In order to demonstrate that the balance of convenience favours the Applicant,
the latter should demonstrate that there is a public interest not to remove him
as scheduled. (RJR-MacDonald, above; Blum v. Canada (Minister of
Citizenship and Immigration) (1994), 90 F.T.R. 54, [1994] F.C.J. No. 1990
(QL), per Justice Paul Rouleau.)
(Patterson v. Canada (Minister of
Citizenship and Immigration), 2008 FC 406, 166 A.C.W.S. (3d) 300).
[97]
In
the present case, Abdel-Karim Mus Eid was admitted to Canada on October 16, 2005,
under the terms of a visa, in order to explore business opportunities. On May 1, 2006,
the visa was renewed until October 2006.
[98]
A
few days before his visa expired, Abdel-Karim Mus Eid filed a refugee
protection claim, which was rejected because of his lack of credibility.
[99]
The
applicant filed an ALJR in the Federal Court in respect of that decision, and
it was dismissed.
[100] He then filed
a PRRA application, which was also dismissed.
[101] Abdel-Karim
Mus Eid has pursued the remedies available to him Canada, and all his
claims and applications have been dismissed up to now. The balance of
convenience favours the Minister, who has an interest in having the procedure take
its normal course.
VIII. Conclusion
[102] Abdel-Karim
Mus Eid
has not shown that he meets the tests for obtaining a stay. Consequently, this motion
for a stay is not allowed.
[103] For all of
these reasons, the motion for a stay of the removal order is dismissed.
JUDGMENT
THE COURT ORDERS that the
motion for a stay of the removal order is dismissed.
“Michel M.J. Shore”
Certified
true translation
Susan
Deichert, Reviser
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