Date: 20070926
Docket: IMM-3786-07
Citation: 2007
FC 962
Montréal, Quebec, September 26, 2007
PRESENT: The Honourable Mr. Justice Pinard
BETWEEN:
SAJID
MAHMOOD CHOUDHARY
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR ORDER AND ORDER
[1]
UPON motion on behalf of the
applicant for an order staying his removal to the United States of America, which is now scheduled to be
executed on September 27, 2007;
[2]
UPON reading the motion records of
the parties and hearing the submissions of counsel for the parties;
[3]
UPON reserving the Court’s
decision;
[4]
AND
UPON
directing myself to the tri-partite test articulated by the Federal Court of
Appeal in Toth v. Canada (Minister of Employment and
Immigration) (1988), 86 N.R. 302;
REASONS FOR ORDER
[5]
The
requested stay must be denied on the ground that the applicant has failed to show
irreparable harm.
[6]
Indeed, it
appears that the applicant is to be removed to the United States of America. There is no evidence whatsoever
about what will happen to him in the U.S.A.
The applicant’s arguments to the effect that he may risk detention in the United States, or deportation by the
American authorities to Pakistan, are speculative. Such speculation
does not meet the test as defined in Toth, supra (see, for
example, Figueroa v. Canada (Minister of
Citizenship and Immigration), [2002] F.C.J. No. 567
(F.C.) (QL), 2002 FCT 438; Aquila v. Canada (Minister of
Citizenship and Immigration), [2000]
F.C.J. No. 36 (F.C.) (QL); Mikhailov v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 642
(F.C.) (QL); Akyol v. Canada (Minister of Citizenship and
Immigration), [2003] F.C.J. No. 1182
(QL), 2003 FC 931; Kazzi
v. Minister of Citizenship and Immigration, IMM-6196-02, January 6, 2003).
[7]
In any
event, the applicant’s allegations as to the prejudice that he would suffer if
returned to Pakistan have been thoroughly
considered and rejected by both the PRRA officer and the Immigration and
Refugee Board. Furthermore, before and after the filing of the present motion,
the applicant himself has requested to be returned to Pakistan rather than to
the United States. In such a context, I am far
from being satisfied that the applicant would face irreparable harm if returned
to Pakistan by the American authorities.
[8]
As for the
applicant’s argument related to life disruption and separation with his spouse,
it is trite law that this type of hardship is simply part of the usual
consequences of deportation and, therefore, does not constitute in itself
irreparable harm. In Selliah v. Canada (Minister of Citizenship
and Immigration), [2004] F.C.J. No.
1200
(FCA) (QL), 2004 FCA 261),
at para. 13, the Federal Court of Appeal recently reaffirmed the following
principle:
[13]
The removal of persons who have remained in Canada
without status will always disrupt the lives that they have succeeded in
building here. […] Nonetheless, the kinds of hardship typically occasioned by
removal cannot, in my view, constitute irreparable harm for the purpose of the Toth
rule, otherwise stays would have to be granted in most cases, provided only
that there is a serious issue to be tried: Melo v. Canada (Minister of
Citizenship and Immigration) (2000), 188 F.T.R. 39.
[9]
Indeed, as
stated by Pelletier J., in Melo v. Canada (Minister of Citizenship and
Immigration),
[2000] F.C.J. No. 403 (QL), para. 21:
…if
the phrase “irreparable harm” is to retain any meaning at all, it must refer to
some prejudice beyond that which is inherent in the notion of deportation
itself. To be deported is to lose your job, to be separated from
familiar faces and places. It is accompanied by enforced separation
and heartbreak. [Emphasis and quotation marks added.]
[10]
In the
circumstances, in view of subsection 48(2) of the Immigration and Refugee
Protection Act, the balance of convenience favours the Minister of Public
Safety and Emergency Preparedness who must execute removal orders as soon as
reasonably practicable.
[11]
Given the
above conclusions, it will not be necessary to deal with the question of
serious issue.
ORDER
CONSEQUENTLY, the applicant’s motion is
dismissed.
“Yvon
Pinard”
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