Date: 20070716
Docket: IMM-2824-07
Citation: 2007 FC 751
Montreal, Quebec, July 16, 2007
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
SYED
WAJID ALI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
AND THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
OVERVIEW
[1]
The
Applicant alleges that the Enforcement Officer relied on incorrect information
regarding the processing of a spousal sponsorship application in circumstances
where an application for rehabilitation is also needed.
[2]
The
Enforcement Officer relayed correct information regarding the processing of the
Applicant’s application and clearly stated, in his affidavit, that, even if the
Applicant could theoretically file for an internal spousal application, it
could not be studied until a decision was rendered on his rehabilitation
application, which would take some time due to a recognition that two counts of
sexual abuse in the second degree of minors had occurred in the United States
(U.S.), all of which could not simply be ignored.
INTRODUCTION
[3]
On July
12, 2007, the Applicant filed an Application for Leave against the decision of
the Enforcement Officer rendered on July 9, 2006, whereby he refused the
Applicant’s request to stay his removal pending the decision of the Applicant’s
application for judicial review of the impugned Enforcement Officer’s decision.
[4]
The Officer’s
refusal to defer the removal was not unreasonable. Moreover, the reasons
provided in support of his decision were sufficient. Indeed, decisions rendered
by removal officers do not require a formal decision with reasons.
[5]
The
removal of the Applicant to Pakistan should take place as scheduled on July 17, 2007 at 9 a.m.
BACKGROUND
[6]
The
following facts emerge from the affidavit of the Enforcement Officer.
[7]
The
Applicant claimed refugee protection on March 7, 2003.
[8]
On August 22, 2005,
the Refugee Division of the Immigration and Refugee Board (IRB) rejected the
Applicant’s refugee claim.
[9]
On October
24, 2005, the Federal Court rejected the Application for Leave related to the
negative IRB decision wherein the Applicant was deemed to be a national of
Pakistan but his identity as a Shia was considered problematic and culminated
in a credibility issue; the Applicant downplayed serious allegations and
discrepancies which were evident in regard to his admission in respect of
police reports of two counts of sexual abuse in the second degree of minors in
the U.S.
[10]
On
May 10, 2007, the Applicant’s Pre-Removal Risk Assessment (PRRA) application
was rejected.
[11]
On
April 28, 2006 the Applicant’s spousal sponsorship (H&C application) was
refused.
[12]
On August
29, 2006 the Federal Court rejected the Application for Leave related to an
internal spousal application.
[13]
On
May 30, 2007 the Enforcement officer met with the Applicant to transmit his
negative PRRA decision and the Applicant indicated to him that he preferred
to return to Pakistan instead of to the U.S. The Applicant never raised the issue of risk
against a removal to the U.S. or to Pakistan during the course of
the interview.
[14]
On June
1, 2007, the Enforcement Officer received a request from his counsel to
defer the Applicant’s removal and granted, that same day, a deferral of the
removal until the first week of July, pending receipt of a copy of his paid
airline ticket and itinerary by June 4, 2007.
[15]
On
June 4, 2007 the Enforcement Officer received a copy of the flight itinerary of
the Applicant to Pakistan for a departure on
July 10, 2007. The Applicant was instructed to forward a copy of his paid
airline ticket.
[16]
On
July 5, 2007 the Applicant’s counsel submitted another request to defer
his removal to Pakistan. That request was
granted until July 17, 2007 in order for it to be given consideration on
the merits.
[17]
On
July 10, 2007, the Enforcement Officer denied the Applicant’s request, dated
July 5, 2007, to defer his removal. A copy of the officer’s reasons accompanied
the negative decision that was sent to the Applicant. The Removal was set for
July 17, 2007 at 9:00 a.m. to Pakistan.
ISSUE
[18]
Does
the Applicant meet the tri-partite test established by this Court to decide
motions to stay the execution of removal orders?
ANALYSIS
[19]
In
order to be granted a stay removal, the Applicant must demonstrate that he
meets all three criteria of the tri-partite test established by the Federal
Court of Appeal in Toth
v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.): (1) a serious issue to
be tried; (2) that the Applicant will suffer irreparable harm if the deportation
order is executed; and (3) that the balance of convenience favours the
Applicant instead of the Minister. (Reference is also made to: RJR-MacDonald Inc. v. Canada
(Attorney General),
[1994] 1 S.C.R. 311.)
SERIOUS ISSUE
[20]
The
Applicant argues that the Removal Officer did not provide sufficient reasons in
support of his decision not to defer his removal.
[21]
The Applicant
argues that the Removal Officer failed to consider important aspects of his
case, namely the best interest of his children and the medical report regarding
his wife.
[22]
The
history in the Applicant’s file shows that he asked for a first deferral of his
removal on June 1, which was granted, to allow him to remain in Canada until his stepson
finished grade 6. The Enforcement Officer was well aware of the
Applicant’s family situation and he considered the interest of his children to
grant a first deferral.
[23]
Moreover,
the Applicant was granted a second deferral of his removal on July 5, which was
also granted.
[24]
When
his second request for deferral was studied on the merits, by the Enforcement Officer,
the Applicant was not granted a third deferral.
[25]
The impugned
decision dated, July 10, 2007, states the following: “I refer to your CBSA has
an obligation under section 48(2) of the immigration and Refugee Protection Act
to carry out removal orders as soon as reasonably practicable. Having
considered your request, I do not feel that a deferral of the execution of
the removal order in the circumstances of this case.”
[26]
The
duty of removal officers was canvassed in Boniowski v. Canada (Minister of Citizenship and Immigration), 2004 FC 1161 (T.D.), [2004] F.C.J. No.
1397 (QL) at paras. 11-12. This Court has determined that there is no higher level of
formal, written reasons that is required for this sort of administrative
reasons.
[27]
Although
in the Hailu v. Canada (Solicitor General), 2005 FC 229, [2005]
F.C.J. No. 268 (QL) decision, Justice Conrad von Finckenstein confirms
categorically that the decisions rendered by removal officers do not require a
formal decision with reasons, the Enforcement Officer, in the case at bar,
conscientiously followed up the case and kept notes on file. He indicated that
keeping notes was “useful and ought to be encouraged, it is however not an
absolute requirement”.
[28]
Moreover,
in the case at bar, the Enforcement Officer provided the Applicant with his
notes relating to the request for deferral. In addition to his notes, the
Enforcement Officer has confirmed, in his affidavit, that he considered the
Applicant’s wife’s medical report and that he was well aware that he had one
stepson and one biological child in Canada, for which, he, nevertheless, never saw a birth
certificate.
[29]
The Applicant
also alleges that the Enforcement officer relied on incorrect information
regarding the processing of an H&C application in circumstances where an
application for rehabilitation is also needed.
[30]
The
Enforcement Officer relayed correct information regarding the processing of the
Applicant’s application and clearly stated, in his affidavit, that, even if the
Applicant could theoretically file for an internal spousal application, it
could not be studied until a decision was rendered on his rehabilitation
application, which would take some time, due to a recognition that two counts
of sexual abuse in the second degree of minors in the U.S., could not simply be
ignored.
[31]
In light
of the foregoing, it is clear that the reasons provided by the removal officer,
in the present case, are more than sufficient and his refusal to defer was not
unreasonable given the circumstances of this case.
IRREPARABLE HARM
[32]
The
second requisite element of the tri-partite test for the granting of a stay of
removal is whether the Applicant would suffer irreparable harm if the application
were refused. The Applicant has not shown that this part of the test has been
met. (RJR-MacDonald, above; Toth, above.)
[33]
The
Applicant must demonstrate that removal will result in a reasonable likelihood
of harm before there can be a finding that removal will result in irreparable
harm. (Soriano
v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 414 (F.C.T.D.).)
[34]
The notion of
irreparable harm has been defined by this Court, as follows:
[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.
(Calderon v. Canada (Minister of
Citizenship and Immigration) (1995), 92 F.T.R. 107, (1995) F.C.J.
No. 393 (QL) (F.C.T.D.)
[35]
Irreparable
harm is more substantial and more serious than personal inconvenience.
It implies the serious likelihood of jeopardy to an Applicant’s life, liberty
or security of the person, or an obvious threat of ill treatment in the country
to which removal will be effected. (Mikhailov v. Canada
(Minister of Citizenship and Immigration), [2000] F.C.J. No. 642
(F.C.T.D.) (QL); Frankowski v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 935 (F.C.T.D.) (QL); Louis
v. Canada (Minister of
Citizenship and Immigration), [1999] F.C.J. No. 1101 (F.C.T.D.) (QL).)
[36]
A
conclusion that the Applicant will suffer irreparable harm if removed cannot be
based on speculation or mere possibility. The evidence supporting
such a finding must be clear and non-speculative. (Chen v. Canada
(Minister of Citizenship and Immigration), 2004 FC 464, [2004]
F.C.J. No. 567 (F.C.)
(QL); Atakora v. Canada (Minister of Employment
and Immigration)
(1993),
68 F.T.R. 122 (F.C.T.D.), [1993] F.C.J. No. 826 (QL); John v. Canada (Minister of
Citizenship and Immigration), [1999] F.C.J. No. 915 (F.C.T.D.) (QL).)
[37]
The Applicant has not
evoked any risk to his life relating to his return to Pakistan.
[38]
Moreover,
the Applicant did not contest his negative PRRA decision before this Court.
[39]
The separation
or relocation of the Applicant’s family is not a sufficient basis upon which to
find that the Applicant will suffer irreparable harm if removed. (Mallia v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 369 (F.C.T.D.) (QL); Mikhailov v. Canada
(Minister of Citizenship and Immigration), [2000] F.C.J.
No. 642 (F.C.T.D.) (QL); Aquila v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 36 (F.C.T.D.) (QL).)
[40]
Lastly,
the Applicant alleges that a separation from his family will be detrimental to
their well being; he, nevertheless, did not adduce any evidence to support his
allegation apart from a letter from Dr. Shariff.
BALANCE OF CONVENIENCE
[41]
Pursuant
to section 48 of the Immigration and Refugee Protection Act, S.C. 2001,
c. 27, 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.
|
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 immédiatement quitter le territoire du
Canada, la mesure devant être appliquée dès que les circonstances le
permettent.
|
[42]
It
is trite law that the public interest must be taken into consideration when
considering this last criterion.
[43]
In
order to demonstrate that the balance of convenience favours the Applicant, he
should have shown 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).)
[44]
As
stated by Justice John Sopinka in Canada (Minister of Employment and Immigration)
v. Chiarelli, [1992]
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.
[45]
The
Applicant has not demonstrated that the balance of convenience favours him.
CONCLUSION
[46]
for all the reasons
stated above, the Applicant’s application for a stay of removal is denied.
JUDGMENT
THIS COURT ORDERS that the Applicant’s application for a stay of
removal be dismissed.
“Michel M.J. Shore”
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