Date: 20081027
Docket: IMM-4587-08
Citation: 2008
FC 1204
Ottawa, Ontario, October 27, 2008
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
SONAM
PALDEN LAKHA
Applicant
and
THE MINISTER OF CITIZENHIP AND
IMMIGRATION
and
THE MINISTER OF PUBLIC SAFETYAND
EMERGENCY PREPAREDNESS
Respondents
REASONS FOR ORDER AND ORDER
[1]
This is a
motion for a stay of the removal of the applicant, Sonam Palden Lakha, to the
United States of America (US) pending the final disposition of his Application
for Leave and for Judicial Review of a negative Pre-Removal Risk Assessment
(PRRA) decision dated August 13, 2008.
[2]
Mr. Lakha was
born in India and spent some years working
in Nepal. He entered the US in June
2004 and from there entered Canada on January 17th, 2005, at which
time he filed a claim for protection alleging citizenship in the People’s
Republic of China (PRC) and a risk of persecution based on his race and Tibetan
nationality. He has never lived in Tibet.
While in the US, Mr. Lakha did not make a
claim for asylum or otherwise seek to regularize his status. His claim was
denied by the Refugee Protection Division (RPD) on November 8th,
2006, and leave for Judicial Review of that decision was denied by this Court
on April 18th, 2007.
[3]
The RPD
held that Mr. Lakha failed to establish his identity as a national of any
country and that there was no country of reference upon which his claim could
be assessed. The PRRA officer found that Mr. Lakha had failed to put forth any
new or cogent evidence to establish his identity as a national of the PRC. Nonetheless
the officer proceeded to conduct an assessment of the possible risk that the
applicant would face if deported to the PRC. The officer concluded that the
applicant had not provided evidence that his profile was similar to those
persons who would currently be at risk of persecution or harm in Tibet having regard to the current country
conditions.
[4]
The issue
on this motion is whether the applicant has satisfied 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.), [1988] F.C.J. No. 587 (QL). To succeed, the
applicant must demonstrate that his motion is based on a serious issue, that he
will suffer irreparable harm if the removal order is executed and that the balance
of convenience favours the grant of a stay.
[5]
It is well
established that the threshold for accepting that a serious issue exists is
low: Asali v. Canada (Minister of Public Safety
and Emergency Preparedness),
2006 FC 860, at paragraph 8.
[6]
The
following questions were submitted by the applicant as issues to be determined
on the judicial review of his negative PRRA decision:
1.
Did the
Officer err in that she rejected the admissibility of evidence before her on
the basis that it was not “new” pursuant to Section 113(a) of IRPA?
2.
Did the
PRRA Officer err in that she did not consider whether evidence before her was
sufficient to rectify the RPD findings in respect of the Applicant’s identity
and citizenship?
3.
Did the
Officer err in that she ignored or misconstrued the Applicant’s argument and
evidence in respect of a sur place claim?
4.
Did the
Officer misconstrue the Applicant’s counsel’s submission with respect to the
admissibility of certain country condition documentation in respect of Tibet?
5.
Did the
Officer err in that her analysis of country conditions in Tibet is made in perverse and or capricious
disregard to the evidence before her?
[7]
For the
purposes of this motion, I am prepared to accept that one or more of these questions
raises a serious issue to be tried. However, that is not the end of the matter.
Mr. Lakha must satisfy the two other branches of the Toth test before I
can grant the requested stay.
[8]
This
motion was brought forward on an urgent basis due to an inadvertent delay in
the service and filing of the applicant’s motion record. The respondent did not
have an opportunity to submit written materials prior to the initial hearing on
October 22, 2008. At the conclusion of that hearing, I advised counsel that I
wished to receive written submissions on the question of irreparable harm. An
interim stay was granted. Counsel for both parties filed written
representations on October 23, 2008 and a further hearing was conducted. The
interim stay was continued and the matter reserved until to-day to consider the
arguments and authorities cited.
[9]
It is
submitted by the applicant that his removal will effectively be to the PRC as
he has no right to remain in the US
and it would be speculative to assume that the American authorities would grant
him asylum or protection from removal. The respondent’s position, in effect, is
that he bears no onus to prove that the applicant will not be deported to the
PRC and that it would be speculative to assume the contrary. The onus remains
with the applicant to establish irreparable harm which he has failed to do.
[10]
The
applicant argues that the jurisprudence of this Court supports the proposition
that if a Judge hearing an application for a stay of removal finds that there
exists a serious issue in respect of a negative PRRA decision, resulting in
exposing the applicant to persecution or subjecting him personally to a danger
of torture or a risk to life or cruel or unusual punishment, then irreparable
harm will necessarily follow and the balance of convenience will normally
favour the applicant.
[11]
The
authority cited for this proposition is the decision of Mr. Justice Luc
Martineau in Figurado v. Canada (Solicitor General), 2005 FC 347. The principle developed by
Justice Martineau in that case has been cited and applied in a number of stay decisions:
see for example Streanga v. Canada (Minister of Citizenship and Immigration),
2007 FC 792.
[12]
The
assumption that removal to the US would result in removal to the country of
potential persecution when the applicant has no right to remain in the US has been accepted in several decisions.
Those cited by the applicant include Asali, above; Ponnampalam v.
Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1174; Cortez
v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 946;
Hatami v. Canada (Minister of Citizenship and Immigration), 2004 FC
1755; Omar v. Canada (Minister of Citizenship and Immigration), 2004 FC
801; and Augusto v. Canada (Minister of Citizenship and Immigration),
2004 FC 801.
[13]
From my
reading of these decisions, there was evidence of risk to the applicant in the
country of origin and the Court was persuaded on the evidence that removal from
the US to that country was probable
or at least likely. I note that in Augusto, for example, there was
affidavit evidence that the applicant would be barred from law from applying
for asylum in the US. There is no evidence of a
similar nature in these proceedings.
[14]
There are also
several decisions where the Court has found that removal to the US would not
constitute irreparable harm notwithstanding the possibility of removal to the
applicant’s country of origin: Radji
v. Canada (Minister of Citizenship and Immigration), 2007 FC 100; Qureshi v. Canada
(Minister of Citizenship and Immigration), 2007 FC 97; Hussein v. Canada
(Minister of Citizenship and Immigration), 2007 FC 1266; Mughal v.
Canada (Minister of Public Safety and Emergency Preparedness), 2007 FC 970;
Choudary v. Canada (Minister of Citizenship and Immigration), 2007 FC
962; Joao v. Canada (Minister of Citizenship and Immigration), 2005 FC
880; Akyol v. Canada (Minister of Citizenship and Immigration), 2003 FC
931; Aquila v. Canada (Minister of Citizenship and Immigration), [2000]
F.C.J. No. 36; and Karthigesu v. Canada (Minister of Citizenship and
Immigration), 153 F.T.R. 204, [1998] F.C.J. No. 1038.
[15]
This Court
has also held 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; Radji, above; and Qureshi,
above.
[16]
There is
no evidence before me that the applicant would suffer irreparable harm if
deported to the US. None arises from the
prospect that the applicant may have to engage the US immigration system to claim asylum or
protection from removal: Mughal, above.
[17]
The US enjoys a democratic system of checks and
balances, an independent judiciary and constitutional guarantees of due process:
Hinzman v. Canada (Minister of Citizenship and
Immigration)
2007 FCA 171. One must assume, in the absence of evidence to the contrary, that
the US treats detainees and refugee claimants fairly: Hisseine v. Canada (Minister of Citizenship and
Immigration),
2005 FC 388. It will be up to the American authorities to decide whether the
applicant should eventually be removed to another country or not: Mikhailov
v. Canada (Minister of Citizenship and
Immigration),
[2000] F.C.J. No. 642; Akyol above; and Qureshi, above.
[18]
On the
evidence that was before the RPD and the PRRA officer and resubmitted on this
motion, it is not at all clear that the applicant has citizenship in the PRC by
virtue of his Tibetan nationality. The onus was on the applicant to establish
that he would be removed to the PRC and would suffer irreparable harm as a
consequence. He has failed to do so. I am not prepared to speculate that the
American authorities will remove him to the PRC.
[19]
The
applicant also submits that his challenge to the PRRA officer’s negative PRRA
decision may be rendered nugatory, as the application may be found to be moot
if he has left Canada. Counsel for the respondent
conceded that this may be raised by the Minister as a ground for dismissing the
underlying application should leave be granted: Figurado, above; Sogi
v. Canada (Minister of Citizenship and
Immigration),
2007 FC 108; and Perez v. Canada (Minister of Citizenship and Immigration), 2008 FC 526.
[20]
In Kim
v. Canada (Minister of Citizenship and Immigration), (2003) 33 Imm. L.R. (3d) 95
at paragraph 9, Mr. Justice James O’Reilly noted that nothing in the Act or the
Rules would interfere with the entitlement of a PRRA applicant who has been
removed from Canada and who is successful on
judicial review to have that application reconsidered. See also Nalliah v.
Canada (Minister of Citizenship and Immigration), [2005] 3 FC 759; Selliah
v. Canada (Minister of Citizenship and
Immigration),
2004 FCA 261; El Ouardi v. Canada (Solicitor General), 2005 FCA 42; and Golubyev
v. Canada (Minister of Citizenship and
Immigration),
2007 FC 394.
[21]
I do not
draw from these decisions the conclusion that an application for judicial
review is rendered moot in every case where the applicant has been removed from
Canada. On the particular facts of
the matter there may no longer be a “live controversy” between the parties with
respect to the PRRA decision if the applicant is no longer in Canada: Perez,
above, at paragraph 26. However, whether an application for judicial review is
moot, and if found to be moot, whether the Court will exercise its discretion
to hear the matter, will turn on the facts of each case.
[22]
In the
present case and on the basis of the evidence before me, I am not prepared to
conclude that the applicant’s challenge to the PRRA officer’s decision would be
rendered moot by his removal to the US.
But even if I were to accept that proposition, I would not agree with the
applicant’s contention that irreparable harm would result from such a finding.
It remains open to the applicant to seek the protection of the US.
[23]
In light
of my conclusion with respect to irreparable harm, I do not need to address the
balance of convenience.
ORDER
THIS COURT ORDERS that the motion for a stay of
removal is dismissed.
“Richard
G. Mosley”
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