Date: 20070130
Docket: IMM-229-07
Citation: 2007 FC 97
Montreal, Quebec, January 30, 2007
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
Faraz
Ulhaq QURESHI
Applicant
and
MINISTER FOR CITIZENSHIP AND
IMMIGRATION
and THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
It
should be noted that the procedures in regard to the consideration of a stay of
removal application are judicial and not of an extra judicial nature.
[10] I should say that the
Applicants are being removed to the United States, not Angola. This Court has
held that removal to the United States does not constitute irreparable harm,
even if the person concerned may be detained. The United States is presumed to
treat detainees and refugee claimants fairly. It will be up to the American
authorities to decide whether the Applicants should eventually be removed to Angola
(Mikhailov v. Minister of Citizenship and Immigration), [2000] F.C.J.
No. 642; Akyol v. Canada (Minister of Citizenship and
Immigration), [2003] F.C.J. No. 1182).
(Joao v. Canada (Minister of
Citizenship and Immigration), 2005 FC 880, [2005] F.C.J. No. 1103 (QL).)
JUDICIAL PROCEDURE
[2]
On
January 17, 2007, Mr. Faraz Ulhaq Qureshi filed a motion in which he is seeking
a stay of the removal order that is scheduled to be carried out on January 31,
2007.
[3]
Mr.
Qureshi seeks a stay until his Application for Leave, filed on January 17,
2006, has been disposed of by this Court. This Application challenges the
decision of Ms Catherine Barthelemy, rejecting his request to stay his removal
pending examination of his sponsorship application.
BACKGROUND
[4]
The
facts are as specified in the Applicant’s Record. One correction is required,
that the Applicant was married in June 2006, not 2005, as mentioned at para. 8.
Also the sponsorship application was submitted in September 2006, not 2005, as
mentioned, at para. 9
ISSUE
[5]
Has
Mr. Qureshi demonstrated that he satisfied the tri-partite test, which this
Court has decided, must be applied when it is called upon to decide whether or
not to stay the execution of a removal order?
ANALYSIS
[6]
In
accordance with the jurisprudence of this Court, in order for Mr. Quereshi to
succeed on this motion, he must demonstrate that al of the three elements of
the tri-partite test identified by the Federal Court of Appeal in Toth v. Canada (Minister of
Employment and Immigration), [1998] F.C.J. No. 587 (QL), have been
established. Accordingly, Mr. Qureshi bears the burden of establishing that:
a) A serious issue
will be tried in the Application for Leave that he filed within his motion;
b) He will
suffer irreparable harm, if the removal order is executed; and,
c) The balance
of convenience favours him rather than the Minister.
(RJR-MacDonald Inc. v. Canada (Attorney
General), [1994] 1 S.C.R. 311 (QL); Wang v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 148, [2001] F.C.J. No. 295 (QL);
Mikhailo v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 642 (QL).)
irreparable
harm
[7]
In his representations, the Applicant alleges that he will suffer
irreparable harm, should he be deported. He alleges that:
i)
His deportation to the USA is
a stepping zone before being remove to Pakistan where he states he will suffer
irreparable harm;
ii)
If returned to Pakistan
he will suffer irreparable harm given he is married to a Christian woman
iii)
In the USA
there is evidence to suggest he will be detained
iv)
He will suffer irreparable
harm by reason of separation from his wife and child
Allegations
of deportation by the American authorities to an Applicant’s country, are considered
by this Court to be “speculative”
[8]
This
Court has established that the issue of irreparable harm must be evaluated in
relation to the country, to which the Minister proposes to return an individual.
(Kerrutt v. Canada (Minister of Employment
and Immigration), (1992) 53 F.T.R. 93, [1992] F.C.J. No. 237 (QL).)
[9]
Allegations
of deportation by the American authorities to an Applicant’s own country, are
also considered by this Court to be “speculative”. Such speculations do not
satisfy the requirement than an Applicant must face “irreparable harm”, in
order for the stay of a removal order to be granted. (Rahim v. Canada
(Minister of Citizenship and Immigration), 2001 FCT 130, [2001] F.C.J. No.
271 (QL), at para. 9; Aquila v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 36 (QL), at para. 15; Karthigesu
v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 1038 (QL), at para. 15;
Gomez-Carillo v. Canada (Minister of Citizenship and Immigration),
[1997] F.C.J. No. 425 (QL), at paras. 5 and 6; Qawdan v. Canada (Minister of
Citizenship and Immigration), [1992] F.C.J. No. 334 (QL), at para. 18; Kaberuk
v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 369
(QL), at para. 4.)
The Applicant has not established that he
faces a risk should he return to Pakistan
[10]
Mr.
Qureshi’s application for a PRRA was denied after a complete and thorough
assessment of the evidence presented by him, as well as an assessment of
documentary evidence obtained through independent sources. The PRRA Officer
concluded that there exists no more than a slight possibility that Mr. Quereshi
would be the subject of persecution or torture, if he were to return to Pakistan.
[11]
Mr.
Quereshi’s risk of a return to Pakistan has been evaluated
several times. The RPD concluded that Mr. Quereshi was not a Convention refugee
(Exhibit A of Ketsia Dorceus’s Affidavit). His PRRA application was denied.
Detention in
the USA does not
constitute irreparable harm
[12]
Justice
Sandra Simpson in Calderon v. Canada (Minister of
Citizenship and Immigration), [1995] F.C.J. No. 393 (QL), stated the
following in relation to the meaning of “irreparable harm”:
[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.
[13]
This
Court has stated that arguments to the effect that an applicant may risk
detention in the United States are too speculative to support a conclusion
of “irreparable harm”. In Mikhailov, above, Justice Marc Nadon stated
the following:
[12] Even if the Applicants
were detained, I am not convinced that this would constitute irreparable harm.
Irreparable harm is not mere inconvenience or financial or emotional hardship.
(See also: Karthigesu,
above, at para. 10; Minister of Employment and Immigration v. Satiacum,
[1999] F.C.J. No. 505 (F.C.A.) (QL); Nabut v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 1392, [2001] F.C.J. No. 1878 (QL); Akyol
v. Canada (Minister of
Citizenship and Immigration), 2003 FC 931, [2003] F.C.J. No. 1182 (QL),
at para. 10; Joao v. Canada (Minister of
Citizenship and Immigration), 2005 FC 880, [2005] F.C.J. No. 1103 (QL),
at para. 10.)
The fact that the Applicant will be
separated from his wife does not constitute “irreparable harm”
[14]
Mr.
Qureshi argues the fact he will be separated from his wife constitutes
“irreparable harm”.
[15]
It
is to be emphasized that Mr. Quereshi and his wife met in December 2004 and
their daughter was born on October 2005. Furthermore, they got married in June
2006. It is only in September 2006 that the application for sponsorship was
submitted. Mr. Qureshi himself is responsible for not having ensured his status
in Canada.
[16]
The
jurisprudence of this Court establishes that “irreparable harm” implies the
“serious likelihood of jeopardy to an applicant’s life or safety”. It must be
“very grave and more than the unfortunate hardship associated with the break-up
or relation of a family”. (Kerrutt, above; Simpson v. Canada (Minister of
Employment and Immigration), [1993] F.C.F. No. 380 (QL); Calderon,
above; Mobley
v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 65 (QL); Mallia v.
Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 369 (QL); Mikhailov,
above; Aquila, above; Perry v. Canada (Minister of Public Safety and
Emergency Preparedness), 2006 FC 378, [2006] F.C.J. No. 473 (QL), at para.
31.)
[17]
Even
where separations caused by removal may produce substantial economic or
psychological hardship to a family unit, the test remains whether Mr. Qureshi
himself will suffer irreparable harm. (Mariona v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1521 (QL);
Carter v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1011
(QL).)
[18]
There
are no grounds upon which this Court could make a finding that Mr. Qureshi will
suffer “irreparable harm” should he be returned to the United States.
The
balance of convenience favours the Minister
[19]
According
to section 48 of the Act, the Respondent has a duty to execute an enforceable
removal order “as soon as is reasonably practicable”:
|
48. (1) A removal order is
enforceable if it has come into force and is not stayed.
(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.
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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.
(2) L’étranger visé par la mesure de
renvoi exécutoire doit quitter immédiatement le territoire du Canada, la
mesure devant être appliquée dès que les circonstances le permettent.
|
[20]
In order to demonstrate that the balance of convenience favours Mr.
Qureshi, the latter should have demonstrated 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. 1990 (QL).)
[21]
As stated by the Mr. Justice Sopinka in Canada (Minister of Employment and Immigration) v. Chiarelli (1992) 135 N.R. 161, [1992] 1 S.C.R. 711 (though dealing
with an extradition case):
…The
most fundamental principle of immigration law is that non-citizens do not have
an unqualified right to enter or remain in the country…
[22]
Mr. Qureshi has not demonstrated that the balance of convenience
favours the non-application of the law :
(iii) Balance of
convenience
[21] Counsel says that since the appellants have no criminal
record, are not security concerns, and are financially established and socially
integrated in Canada, the balance of convenience favours maintaining the status
quo until their appeal is decided.
[22] I do not agree. They have had three negative administrative
decisions, which have all been upheld by the Federal Court. It is nearly four
years since they first arrived here. In my view, the balance of convenience
does not favour delaying further the discharge of either their duty, as persons
subject to an enforceable removal order, to leave Canada immediately, or the
Minister's duty to remove them as soon as reasonably practicable: IRPA,
subsection 48(2). This 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.
(Shelliah v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 261 (C.A.F.), [2004] F.C.J. No. 1200
(QL); Dasilao v. Canada (Minister of Citizenship and
Immigration), 2004 FC 1168 (F.C.), [2004] F.C.J. 1410 (QL); Membreno-Garcia v. Canada
(Minister of Employment and Immigration), [1992] 3 C.F. 306, [1992] A.C.F. No. 535
(QL);
Kerrutt, above.)
CONCLUSION
[23]
The Applicant’s Motion to
stay the execution of the removal order is denied.
JUDGMENT
THIS COURT ORDERS that the motion for an order to
stay the removal
be dismissed.
“Michel M.J. Shore”
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