Date: 20041214
Docket: A-298-04
Citation: 2004 FCA 427
Present: RICHARD C.J.
BETWEEN:
IQBAL SINGH ATWAL
Appellant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Heard by conference call at Ottawa and Toronto, Ontario, on December 13, 2004.
Order and Reasons for Order delivered at Ottawa, Ontario, on December 14, 2004.
REASONS FOR ORDER BY: RICHARD C.J.
Date: 20041214
Docket: A-298-04
Citation: 2004 FCA 427
Present: RICHARD C.J.
BETWEEN:
IQBAL SINGH ATWAL
Appellant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] The appellant has brought a motion for a stay of removal pending the hearing and determination of his appeal from an order of the Federal Court allowing the respondent's application for judicial review of the Immigration Appeal Division and certifying a question.
[2] The appellant is a citizen of India. He was granted landing in Canada on January 26, 1990, but has not become a Canadian citizen.
[3] While in Canada, the appellant was convicted of two counts of robbery and one count of use of an imitation of a firearm.
[4] On May 26, 1999, an inquiry was held and a deportation order was issued against the appellant on the grounds that he had been convicted of an offence for which he could have been sentenced to life in prison and had been convicted of an offence for which he did receive a sentence of more than 6 months.
[5] Following an appeal, the Immigration Appeal Division granted him a stay of the deportation order and required him to comply with a number of conditions, including reporting in person on a regular basis to an Immigration Officer.
[6] The appellant breached a condition of the stay by not reporting as directed and the stay of the deportation order was removed on June 15, 2004.
[7] On November 18, 2004, the appellant was informed of the results of his pre-removal risk assessment and that his application for protection was not allowed since it had been determined that he would not be subject to risk of torture, risk to life, or risk of cruel and unusual treatment or punishment if returned to his country of nationality or habitual residence.
[8] The appellant was notified on December 2, 2004 that his removal was scheduled for December 14, 2004 on a flight departing at 9:30 p.m. The Expulsion Officer who gave the appellant his direction to report for removal filed an affidavit in this motion stating, in part, that the appellant understood his case and knew that he made a mistake and said to him that he was ready to go back to India.
[9] The Supreme Court of Canada has established a three-stage test for determining whether interlocutory injunctions or stays should be granted pending the determination of a proceeding on its merits, namely,
(i) the applicant must demonstrate a serious question to be tried;
(ii) the applicant must establish that it will suffer irreparable harm if the relief is not granted;
(iii) the third stage requires an assessment of the balance of convenience in that the public interest must be taken into account.
[10] The respondent concedes that there is a serious issue in this case, given that there has been a certified question on an issue of law.
[11] However, the appellant has not demonstrated that he meets the other two tests for a stay.
[12] The appellant has negative risk in India, as demonstrated by his negative PRRA as well as the fact that the appellant has spent significant amounts of time in India of his own accord. One recent visit was in November 2003 for a scheduled 10-week trip.
[13] There is no irreparable harm demonstrated by the appellant in regard to his business, separation from family, or being outside Canada while his appeal proceeds before the Federal Court of Appeal.
[14] Irreparable harm must constitute more than a series of possibilities. The onus is on the appellant to demonstrate in the evidence that the extraordinary remedy of a stay of removal is warranted.
[15] In this case, the appellant's materials contain only assertions and speculation.
[16] The irreparable harm claimed by the appellant with regard to loss of job and separation from his family consists of the usual consequences of deportation. It is not of the type contemplated by the three-stage test for granting a stay. As stated by Pelletier J.: Melo v. Canada (Minister of Citizenship and Immigration), (2000), 188 F.T.R. 39 at 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.
[17] As stated by Evans J.A. in Selliah v. Canada (Minister of Citizenship and Immigration), 2004 FCA 261, at para. 13:
The removal of persons who have remained in Canada without status will always disrupt the lives that they have succeeded in building here. This is likely to be particularly true of young children who have no memory of the country that they left. 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.
[18] The irreparable harm claimed by the appellant with regard to his treatment for opiate addiction in Canada is based on the absence of such drug treatment availability in India. However, this assertion is contrary to the indications in the publicly available sources provided by the respondent to the Court.
[19] The balance of any inconvenience which the appellant may suffer as a result of his removal from Canada does not outweigh the public interest which the respondent seeks to maintain in the application of the Immigration and Refugee Protection Act, specifically her interest in executing a deportation order as soon as reasonably practicable.
[20] The record shows that the appellant was given a five-year stay by the Immigration Appeal Division and, nonetheless, failed to comply with the terms and conditions imposed on him.
[21] Accordingly, the appellant's motion for a stay of his removal will be dismissed.
[22] By agreement of counsel, the appellant's further motion to file a supplementary memorandum of fact and law in the appeal before this Court is to proceed in writing under Rule 369 of the Federal Courts Rules.
"J. Richard"
Chief Justice
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-298-04
STYLE OF CAUSE: IQBAL SINGH ATWAL v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Ottawa and Toronto, Ontario
DATE OF HEARING: December 13, 2004
REASONS FOR ORDER: Richard C.J.
DATED: December 14, 2004
APPEARANCES:
SOLICITORS OF RECORD:
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