Date: 20070201
Docket: IMM-244-07
Citation:
2007 FC 110
Montréal, Quebec, February 1, 2007
Present:
The Honourable Mr. Justice Shore
BETWEEN:
MUHAMMAD
ZAKIR SHAIKH
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION and
MINISTER OF
PUBLIC SAFETY
AND EMERGENCY
PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND
JUDGMENT
INTRODUCTION
[1]
In light
of the following, the applicant has failed to raise a serious question in
support of his motion. The motion for a stay of removal order could be dismissed
on that ground alone.
[2]
[17] It is trite law that this new
evidence, not before the decision-maker, is inadmissible before the Court on a
stay application and on the judicial review from the PRAA officer’s
determination.
(Pandher v. Canada (Minister of Citizenship and
Immigration), 2006 FC 80, [2006] F.C.J. No. 101,
(QL))
LEGAL PROCEEDING
[3]
This is a
motion for a stay of the removal order issued against the applicant. This
motion is combined with an application for leave and for judicial review (ALJR)
of the decision refusing to exempt the applicant from the requirement to obtain
his permanent resident visa from outside Canada based on humanitarian and
compassionate grounds. This decision was made on May 30, 2006, by the
pre-removal risk assessment officer (PRRA) (Exhibit A to the affidavit of Mahsa
Moshir).
PRELIMINARY
REMARKS
Amendment to
the style of cause
[4]
Because
the Department of Public Safety and Emergency Preparedness Act, (S.C.
2005, c. 10) has come into force, the Minister of Public Safety and
Emergency Preparedness should have been named as a respondent in addition to
the Minister of Citizenship and Immigration, in accordance with the
Order-in-Council issued April 4, 2005 (P.C. 2005-0482).
[5]
The style
of cause is amended to add the Minister of Public Safety and Emergency
Preparedness as a respondent in addition to the Minister of Citizenship and
Immigration.
FACTS
[6]
The
applicant, a citizen of India, arrived in Canada and claimed refugee status on
January 27, 2003 (“Case Summary”, H&C Application – Notes to
file, exhibit B to the affidavit of Mahsa Moshir (officer’s notes)).
[7]
The
refugee claim was refused by the Refugee Protection Division of the Immigration
and Refugee Board (RPD) on May 10, 2004 (Exhibit P-1 to the affidavit of the
applicant, applicant’s record).
[8]
The RPD
did not believe the applicant’s allegations and found no credible basis to his
claim:
. . . pursuant to s. 107 (2) of the Act,
the tribunal determines that there is no credible basis to the claim in that
there is no credible or trustworthy evidence on which the tribunal could have
determined that the claimant is a Convention refugee or a person in need of
protection.
(My emphasis.)
(Page 8 of
the RPD’s reasons for decision, exhibit P-1 to the applicant’s affidavit,
applicant’s record)
[9]
On August
5, 2004, the Federal Court dismissed the application for leave and for judicial
review of the RPD decision (“Case Summary”, officer’s notes, exhibit B to the
affidavit of Mahsa Moshir).
[10]
On March
28, 2005, the applicant applied for an exemption from the requirement to apply
for permanent residence from abroad based on humanitarian and compassionate
grounds.
[11]
On May 30,
2006, the officer refused the applicant’s application based on humanitarian and
compassionate grounds (Letter from officer and H&C Application – Notes to
file, exhibit P-1 to the applicant’s affidavit, applicant’s record).
[12]
The
applicant received the officer’s reasons on June 6, 2006 (ALJR,
exhibit A to the affidavit of Mahsa Moshir).
[13]
On January
17, 2007, the applicant filed an application for leave and judicial review of
the decision regarding the application based on humanitarian and compassionate
grounds, and a motion for an extension of time.
ANALYSIS
[14]
In order
to assess the merits of the stay motion, this Court must determine whether the
applicant meets the criteria set out by the Federal Court of Appeal in Toth
v. Canada (Minister of Citizenship and Immigration), 86 N.R. 302 (F.C.A.),
[1988] F.C.J. No. 587 (QL).
[15]
In that
case, the Federal Court of Appeal adopted three criteria imported from the case
law on injunctions, more specifically the decision by the Supreme Court of
Canada in Manitoba (Attorney General) v. Metropolitan Stores Ltd.,
[1987] 1 S.C.R. 110. These three criteria are:
A - a
serious question to be tried;
B - irreparable
harm; and
C - the
balance of convenience.
[16]
All three
criteria must be met for this Court to grant a stay. If one of them is not met,
this Court cannot grant a stay.
[17]
In this
case, the applicant has not demonstrated that there is a serious question to be
tried on his application for leave to review the officer’s decision concerning
the application based on humanitarian and compassionate grounds, or that he
will suffer irreparable harm. Finally, the applicant’s interests are not
superior to the public interest in wanting the removal order to be enforced as
soon as is reasonably practicable under subsection 48(2) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act).
A –
SERIOUS Question
[18]
The
applicant has not established that there is a serious question to be tried by
this Court.
[19]
The
applicant must show that he has a reasonable chance of succeeding in his main
action, i.e. his application for judicial review of the officer’s decision.
[20]
The
applicant received a copy of the officer’s decision on June 6, 2006. It was not
until seven months later, on January 17, 2007, that the applicant served and
filed his ALJR.
[21]
Paragraph
72(2)(b) of the Act provides that an application for leave and judicial
review must be filed within 15 days of the decision where the matter arises in
Canada.
[22]
The
applicant explains in his motion for an extension of time that he [TRANSLATION] “did not think it was useful
to ask for judicial review since he was supposed to obtain permanent residence
as an American.” In addition, he explains that he is [TRANSLATION]
“unable to do so
because he has not obtained his passport from India, and his American permanent
residency cannot proceed for that reason.” (ALJR, exhibit A to the affidavit of
Mahsa Moshir)
[24]
The case
law has established that the party requesting an extension of time must provide
a reasonable explanation for the entire period in which he or she is in default
and must prove that he or she has an arguable case (Grewal v. Canada
(Minister of Employment and Immigration), [1985] 2
F.C. 263, [1985] F.C.J. No. 144 (QL); Beilin
v. Canada (Minister of Employment and Immigration), (1994) 88 F.T.R. 132, [1994] F.C.J. No. 1863, paragraph 6 (T.D.) (QL); Lewis v. Canada
(Minister of Employment and Immigration), 2001
FCT 676, [2001] F.C.J. No. 1004 (T.D.)(QL), paragraph 6 (Prothonotary John Hargrave); Nwammadu
v. Canada (Minister of Citizenship and Immigration), 2005 FC 107, [2005] F.C.J. No. 134 (QL), paragraph 9).
[25]
Furthermore,
the applicant must also demonstrate that he or she had a continuing intention
to challenge, in the legal sense, the decision in issue (Canada
(Attorney General) v. Hennelly, [1999] F.C.J. No.
846, (C.A.) (QL), paragraph 3; Semenduev
v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 70 (T.D.) (QL), paragraph 2; Butt
v. Canada (Solicitor General), 2004 FC 1032,
[2004] F.C.J. No. 1255 (QL), paragraph 4; Tihomirovs v. Canada
(Minister of Citizenship and Immigration), 2006
FC 197, [2006] F.C.J. No. 235 (QL), paragraph 111; Nwammadu,
above, note 11, paragraphs 9-10).
[26]
The time
limits for applications for leave must be complied with and are more than mere
technicalities (R. v. Roberge, 2005 SCC 48,
[2005] S.C.J. No. 49 (QL), paragraph 6; Beilin, above, note 11; Lewis, note 11; Nwammadu, above, note 11).
[27]
Mr.
Justice Louis Marceau’s remarks in Grewal are relevant here:
The imposition of time limits to dispute
the validity of a legal decision is of course meant to give effect to a basic
idea of our legal thinking that, in the interest of society as a whole,
litigation must come to an end (interest reipublicae ut sit finis litium),
and the general principles adopted by the courts in dealing with applications
to extend those limits were developed with that in mind.
(My emphasis.)
(Grewal, above, note 11 (concurring reasons of Marceau J.))
[28]
To satisfy
this Court that there is a serious question to be tried on this motion for a
stay of execution of a removal order, the applicant has to demonstrate that his
motion for an extension of time has a chance to succeed (Semenduev,
above, note 12 ; Butt, above, note 12).
[2] As an extension of time is a
condition precedent to the consideration of his leave application, the
Applicant must, in order to satisfy me that it raises a serious issue, also
establish that his application for an extension of time raises a serious issue.
To do so, the Applicant must put before me evidence from which I could conclude
that there are grounds upon which this Court could extend the time. In
this respect, the case law requires amongst other things that the Applicant
establish that he had, throughout the period with respect to which the
extension is being sought the intention to challenge, in the legal sense, the
decision in issue, but that he was prevented from doing so by reason of factors
which were beyond his control.
(Semenduev, above, note 12)
[29]
The
applicant’s explanation clearly shows that, until recently, he had no intention
of challenging the officer’s decision by way of judicial review:
. . . The applicant did not think it was
useful to ask for judicial review since he was supposed to obtain permanent
residence as an American. However, the applicant is unable do so because he has
not obtained his passport from India, and his permanent American residency
cannot proceed for that reason. . . .
(Motion for extension of time, ALJR,
exhibit A to the affidavit of Mahsa Moshir)
[30]
The
applicant has not established that there are special reasons for a judge of
this Court to allow an extended time for filing (paragraph 72(2)(c)
of the IRPA) and,
accordingly, he has not shown that there is a serious question to be tried on
his ALJR.
[31]
In his
written submissions in support of his stay motion under the heading [TRANSLATION]
“Serious
Question,” the applicant states that the officer’s evaluation of
disproportionate or unusual hardship did not take into account the fact that
the applicant could not claim to be a citizen of any country (Paragraph 7
of written submissions, applicant’s record).
[32]
The
officer states in his affidavit that the applicant did not mention or submit
evidence that he was experiencing difficulties in obtaining his Indian passport
or that he could not claim to be a citizen of any country.
[33]
The
applicant adduced no evidence that he had relied on this ground before the
officer to demonstrate disproportionate or unusual hardship, and his affidavit
is silent on this issue.
[34]
The
applicant also argues that the officer should have considered the application
for permanent residence, sponsored by his wife, that was pending in the United
States at that time (Paragraph 7 of written submissions, applicant’s record).
[35]
The
officer states in his affidavit that the applicant presented no evidence
regarding his contacts with his wife in the United States and did not mention
that his application for permanent residence, sponsored by his wife, was
pending in the United States at that time.
[36]
The
exchange of e-mail that the applicant submitted to support his motion is dated
October 2006, long after the decision was made on the application based on
humanitarian and compassionate grounds (Exhibit P-4 of the affidavit of
the applicant, applicant’s record).
[37]
Moreover,
this exchange does not indicate in any way that the Indian authorities refused
to issue a passport to the applicant.
[38]
Similarly,
the evidence adduced on this motion regarding a visa application in the United
States mentions only cryptically the types of visa in question, under the
heading “Visa Symbol”,
i.e. IR1 and K3 (Exhibit P-3 to the affidavit of the applicant, applicant’s
record).
[39]
Since this
information was not in evidence before the officer, the applicant cannot now
rely on it at the level of the judicial review and stay motion.
[17] It is trite law that this new evidence,
not before the decision-maker, is inadmissible before the Court on a stay
application and on the judicial review from the PRAA officer’s determination.
(Pandher, above)
[40]
Considering
all the foregoing, the applicant has therefore failed to raise a serious
question in support of his motion. The motion for a stay of removal order could
be dismissed on this ground alone.
B – irrEparable HARM
[41]
The
concept of irreparable harm was defined by the Court in Kerrutt v. Canada
(Minister of Employment and Immigration), (1992) 53 F.T.R. 93, [1992]
F.C.J. No. 237, paragraph 15 (QL) (T.D.) as returning a person to a country
where his or her safety or life are in jeopardy.
[42]
In Calderon
v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 393,
paragraph 22 (QL), Madam Justice Simpson wrote the following regarding the
definition of irreparable harm set out in Kerrutt:
[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. (My emphasis.)
[43]
The
applicant’s affidavit merely states that he would suffer irreparable harm if he
had to return to his country of origin. Moreover, his written submissions
mention only that his life would be at risk if he were returned to India.
[44]
As stated
in the certificate of departure, the applicant will be returned to the United
States, pursuant to paragraph 241(1)(a) of the Immigration and
Refugee Protection Regulations, SOR/2002-227 (the Regulations) and the Canada-U.S.
Safe Third Country Agreement.
[45]
Since both
the applicant’s affidavit and his written submissions are silent as to the
irreparable harm he would suffer if he were removed to the United States, there
is no evidence before this Court on this point.
[46]
It is
superfluous that the respondent submits that the applicant has provided no
satisfactory evidence of irreparable harm should he return to India.
[47]
In support
of his application based on humanitarian and compassionate grounds, the
applicant repeated the same allegations that were before the RPD (various
documents in support of the application based on humanitarian and compassionate grounds, exhibit C
to the affidavit of Mahsa Moshir).
[48]
With
respect to the application based on humanitarian and compassionate grounds, the
officer noted in his risk assessment that the RPD had found the applicant’s
allegations not credible.
[49]
The
officer also noted that the applicant had adduced no evidence that he would
personally be at risk if he were to possibly return to India. The documentary
evidence had no connection to the applicant or his situation, and the applicant
did not provide the officer with any explanation connecting him to this documentation
(Exhibit
A to the affidavit of officer Olivier Perreault; page 3 of the officer’s notes, exhibit B
to the affidavit of Mahsa Moshir).
[50]
In his
written submissions concerning the serious question, the applicant does not
dispute the officer’s risk assessment. Therefore, it has not been shown that
the officer erred in his analysis or in his finding that the applicant failed
to prove he would personally be at risk should he return to India (Paragraph 7
of written submissions, applicant’s record; page 3 of officer’s notes,
exhibit B to the affidavit of Mahsa Moshir).
[51]
Accordingly,
in the absence of a serious question to be tried by this Court, the applicant
has not established irreparable harm.
C -
Balance OF CONVENIENCE
[52]
In
addition to demonstrating that the underlying application for judicial review
raises a serious question to be tried and that he or she would suffer
irreparable harm if the removal order is not stayed, the person requesting a
stay must establish that, having regard to all the circumstances, the balance
of convenience favours granting the stay (Manitoba, above; R.J.R. –
MacDonald Inv. v. Canada (Attorney General), [1994] 1 S.C.R. 311; Toth,
above).
[53]
In order
to determine the balance of convenience, the Court must decide which of the two
parties will suffer the greater harm from the granting or refusal of a stay (Manitoba,
above).
[54]
In the
absence of a serious question and irreparable harm, the balance of convenience
favours the Minister, who has an interest in having a removal order enforced on
the scheduled date (Mobley v. Canada (Minister of Citizenship and
Immigration), [1995] F.C.J. No. 65,
paragraph 2 (QL)).
[55]
In fact,
subsection 48(2) of the Act provides that a removal order must be enforced as
soon as is reasonably practicable.
|
Enforceable
removal order
|
Mesure
de renvoi
|
|
48. (1) A removal order is
enforceable if it has come into force and is not stayed.
|
48. (1) La mesure de
renvoi est exécutoire depuis sa prise d’effet dès lors qu’elle ne fait pas
l’objet d’un sursis.
|
|
Effect
|
Conséquence
|
|
(2) If a removal order is enforceable,
the foreign national against whom it was made must leave Canada immediately
and it must be enforced as soon as is reasonably practicable.
|
(2) L’étranger visé par la mesure de
renvoi exécutoire doit immédiatement quitter le territoire du Canada, la
mesure devant être appliquée dès que les circonstances le permettent..
|
[56]
In Membreno-Garcia,
Madam Justice Barbara Reed discussed the balance of convenience issue on stay
motions and the public interest that must be considered:
[18] What is in issue, however, when considering
balance of convenience, is the extent to which the granting of stays might
become a practice which thwarts the efficient operation of the immigration
legislation. It is well known that the present procedures were put in
place because a practice had grown up in which many many cases, totally devoid
of merit, were initiated in the court, indeed were clogging the court, for the
sole purpose of buying the appellants further time in Canada. There is a
public interest in having a system which operates in an efficient, expeditious
and fair manner and which, to the greatest extent possible, does not lend
itself to abusive practices. This is the public interest which in my view
must be weighed against the potential harm to the applicant if a stay is not
granted.
(Membreno-Garcia v. Canada (Minister of Employment and
Immigration), [1992] 3 F.C. 306 [1992] F.C.J. No.
535 (T.D.) (QL)).
[57]
It is
important to note that since the applicant was the subject of a no credible
basis finding, he was unable to benefit from the statutory stay set out in
section 231 of the Regulations.
|
231. (1) Subject to
subsections (2) to (4), a removal order is stayed if the subject of the
order has filed an application for leave for judicial review in accordance
with subsection 72(1) of the Act with respect to a determination of the
Refugee Protection Division to reject a claim for refugee protection, and the
stay is effective until the earliest of the following:
|
231. (1) Sous réserve des
paragraphes (2) à (4), la demande d’autorisation de contrôle judiciaire
faite conformément au paragraphe 72(1) de la Loi à l’égard d’une
décision rendue par la Section de la protection des réfugiés rejetant la
demande d’asile emporte sursis de la mesure de renvoi jusqu’au premier en
date des événements suivants:
|
|
(a) the application for leave is
refused,
|
a) la demande d’autorisation est
rejetée;
|
|
…
|
[...]
|
|
(2) Subsection (1) does not
apply if the Refugee Protection Division states in its decision, in
accordance with subsection 107(2) of the Act, that there is no credible
basis for the claim.
|
(2) Le
paragraphe (1) ne s’applique pas dans le cas où, dans sa décision, la
Section de la protection des réfugiés fait état, conformément au
paragraphe 107(2) de la Loi, de l’absence d’un minimum de fondement de
la demande d’asile.
|
(My emphasis.)
[58]
The
balance of convenience favours the Minister.
CONCLUSION
[59]
For
all these reasons, the applicant’s motion for a stay is dismissed.
JUDGMENT
THE COURT ORDERS that this motion for a stay be
dismissed
“Michel
M.J. Shore”
Email this Content