Date: 20071203
Docket: IMM-4820-07
Citation: 2007 FC 1266
Ottawa, Ontario, December 3, 2007
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
ASHRF HUSSEIN
IBRAHIM HUSSEIN
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1]
The irreparable harm branch of the test is broader than that of a
“serious issue”. The Court may consider the Refugee Protection Division’s (RPD)
negative credibility findings. The RPD found the Applicants’ story not to be
credible. It has been held that a story that was found not to be credible by
the Refugee Board cannot serve as a basis for an argument supporting
irreparable harm. There is no risk to the Applicants that would constitute
irreparable harm. (RPD
Reasons; Applicants’ Motion Record, pp 135-1456; Beck-Ne v. Canada (M.C.I.) (11 December 2002),
Doc. No. IMM-5943-02 (F.C.T.D.) (unreported); Saibu v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 103, [2002] F.C.J. No. 151 (QL), para.
11; Rajz v. Canada (15 July 2003), Doc.
No. IMM-5263-03 (F.C.T.D.) per Justice Luc Martineau; Akyol v. Canada (Minister of
Citizenship and Immigration), 2003 FC 931, [2003] F.C.J. No. 1182 (QL).)
JUDICIAL PROCEDURE
[2]
This
is a motion for a stay of removal of the Applicants, scheduled for December 4, 2007
at nine in the morning.
FACTS
[3]
Mr. Ashrf Abdelrahim Ibrahim Hussein Al-Hashmy (Ashif) and Mr. Ibrahim
Abdelrahim Ibrahim Hussein Al-Hashmy (Ibrahim) are brothers and citizens of Sudan.
In 2001, they entered Canada and claimed refugee status.
[4]
The RPD dismissed the Applicants’ claims to Convention refugee status
for the reasons that Ashif’s claimed conscription and subsequent escape from
the military camp lacked credibility and plausibility in its key and central
elements. The RPD noted numerous discrepancies between the immigration
documents completed by the Applicants after their arrival in Canada, their Personal
Information Forms (PIFs), and their oral testimony.
[5]
The Applicants sought to have the determination of the RPD judicially
reviewed. Leave was denied by the Federal Court on March 6, 2003.
[6]
Their application was considered by a Pre-Removal Risk Assessment (PRRA)
Officer who carefully considered all the material submitted by the Applicants
and other publicly available country condition documents. The Officer also
concluded that there were no substantial grounds to believe that the Applicants
would face a risk of torture; nor were there reasonable grounds to believe they
would face a risk to life or a risk of cruel and unusual treatment or
punishment.
ANALYSIS
[7]
The principles upon which a stay of removal may be granted are:
a.
whether
there is a serious question to be determined by the Court;
b.
whether
the party seeking the stay would suffer irreparable harm if the stay were not
issued; and
c.
whether,
on the balance of convenience, the party seeking the stay will suffer the
greater harm from the refusal to grant the stay.
(Manitoba (Attorney
General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110; Toth v.
Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302
(F.C.A.); RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311.)
SERIOUS ISSUE
[8]
The application is a challenge to the substance of the PRRA
decision. Thus, the Applicants are required to demonstrate the existence of a
serious issue with respect to this proceeding.
[9]
In the case at bar, the Officer did not make a determination
regarding the Applicants’ credibility, yet, he was not satisfied with the
evidence the Applicants proffered to displace the significant adverse
credibility determination of the RPD Panel which included the discrepancy, that
the Applicants resided outside of their country of origin from 1900 until 1997;
and, they withheld that information subsequently from the RPD Panel, although
the information had appeared on initial Immigration documents.
IRREPARABLE HARM
[10]
The irreparable harm branch of the test is broader than “serious
issue”. The Court may consider the RPD’s negative credibility findings. The RPD
found the Applicants’ story not to be credible. It has been held that a story
that was found not to be credible by the Refugee Board cannot serve as a basis
for an argument supporting irreparable harm. There is no risk to the Applicants
that would constitute irreparable harm. (RPD Reasons; Applicant’ Motion Record, above; Beck-Ne,
above; Saibu, above; Rajz, above; Akyol, above.)
[11]
The Applicants have already had their risk assessed. The same
risk cannot serve as a basis for an argument supporting irreparable harm in a
stay application. As to the underlying application, they may continue to
instruct counsel and pursue their application from abroad. Nothing in the Immigration
and Refugee Protection Act, S.C. 2001, c.27 or the Immigration and Refugee
Protection Regulations, SOR/2002-227 interferes with the entitlement of a
PRRA applicant, who has been removed from Canada and who is successful on
judicial review, to have his application reconsidered. (Sesay v. MCI (IMM 912-07 and 914-07) per
Justice Edmond Blanchard; Kim v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 321, [2003] F.C.J. No. (QL); Sivagnanansuntharam
v. M.C.I. (February 16, 2004, Docket A-384-03) (F.C.A.); Akyol, above,
para. 11 (and cases cited therein); Selliah v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 261, [2004] F.C.J. No. 1200 (QL),
para. 20; El Ouardi v. Canada (Solicitor General), 2005 FCA 42, [2005]
F.C.J. No. 189 (QL).)
[12]
The fact that the Applicants may face detention in the United
States, is not, by itself, a basis to find that the Applicants will suffer
irreparable harm if removed. (Nabut v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1392, [2001]
F.C.J. No. 1878 (F.C.T.D.) (QL).)
BALANCE OF CONVENIENCE
[13]
In the circumstances of this case, the balance of any inconvenience
which they may suffer as a result of removal from Canada does not outweigh the
public interest which the Respondent seeks to maintain. (Selliah, above.)
[14]
For
all of the above reasons, the Applicants’ Motion for a stay of execution of the
removal order is dismissed.
ORDER
THIS COURT ORDERS that the Applicants’ Motion for a stay of execution of the
removal order be dismissed.
“Michel M.J. Shore”