Date: 20061002
Dockets: IMM-2474-06
IMM-4899-06
Citation: 2006 FC 1167
BETWEEN:
MOHAMED MEHDI CHIBANI
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondents
REASONS FOR ORDER
[1]
Mr.
Chibani is scheduled to be removed from Canada to his native Algeria on 10
October. He seeks a stay of that removal pending the final outcome of two
applications for leave and for judicial review presently before this Court. In
Court Docket No. IMM-2474-06, he seeks a review of the Minister’s decision
refusing him the privilege of applying for permanent resident status from
within Canada. Although
section 11 of the Immigration and Refugee Protection Act (IRPA) requires
a foreign national to apply for an appropriate visa before entering Canada, the
Minister may, under section 25 of the IRPA, examine the circumstances and
exempt an applicant from any applicable criteria on humanitarian and
compassionate grounds (H&C).
[2]
The
other decision at issue arises from Mr. Chibani’s pre-removal risk assessment
(PRRA). Although he was found some years ago not to be a refugee within the
meaning of the United Nations Convention Relating to the Status of Refugees, he
was entitled to and did ask for an up-to-date assessment in accordance with
sections 112 and following of the IRPA. The Minister found that he would not be
at risk if he were returned to his homeland.
[3]
The
timing of the two decisions is relevant. The negative H&C decision was
handed down on 11 April 2006 and the negative PRRA decision on 25 July 2006. In
brief, a PRRA and an H&C differ, although there can be some overlap. A PRRA
is an assessment of events occurring after an application for refugee status
has been dismissed (which in Mr. Chibani’s case goes back to 1996). Its purpose
is to determine if a person would now be at risk if returned. The H&C is
more a balancing of the contacts the applicant has with Canada and with his
homeland, but it also takes into account, at least to some extent, risks an applicant
might face if returned.
THE TEST TO BE APPLIED
[4]
It
is well established that a stay, like an interlocutory injunction, is an
extraordinary remedy and should only be granted if there is a serious issue in
the underlying application, or in this case applications, irreparable harm if
the stay should not be granted and a balance of convenience which favours the
applicant. All three requirements must be
met.
(Toth v. Minister of Employment and
Immigration (1988), 86 N.R. 302 and RJR-MacDonald v. Canada (Attorney General), [1994] 1 S.C.R. 311).
[5]
I
shall analyze both decisions in the light of these three requirements, one requirement
after the other.
SERIOUS ISSUE
[6]
As
regards the H&C application, Mr. Chibani points out the application had
been outstanding for some three years when he received a letter in the mail
requiring him to update his file within fifteen days. He wrote back on the last
day with some information, but said he was unable to provide the rest due to
his medical condition, upon which he did not elaborate. In reply he was given a
further very short delay, which he did not meet.
[7]
Mr.
Chibani claims it was grossly unfair to give him such a short delay to report
on his personal life over a three-year period. Had he had more time, he would
have been able to produce a letter from a psychologist as to his state of
mental health (a rather vague letter to that effect appears in the court file),
would have been able to give better particulars of his benevolent work (he
never seems to have been employed), and would have been able to establish that
his situation in Algeria would be untenable because he has converted from Islam
to Christianity.
[8]
Assuming,
but certainly not deciding, that Mr. Chibani has raised a reasonably arguable
point as regards lack of procedural fairness, I turn to the serious issue in
the PRRA decision.
[9]
In
the PRRA, Mr. Chibani raises two significant points. One is that the officer
did not believe that while in Canada he converted from Islam to Christianity.
The second is that if credibility was in issue, the officer should have called
him for a face to face interview. It is not necessary to decide whether these
are serious issues in the light of my decision with respect to irreparable harm
and balance of convenience.
IRREPARABLE HARM
[10]
Mr.
Chibani has not suffered irreparable harm even if he should have been given
more time to make representations on his H&C application. No effort was
made to remove him before the PRRA decision was handed down, and that decision
contained a very detailed analysis of religion in Algeria.
[11]
In
support of his conversion, he proffered a letter from a parish priest, and claims
that he always carries the Bible with him. The officer did not give much weight
to the letter from the priest because although it says that Mr. Chibani attends
mass, it does not say he converted. In fact, the evidence is clear that Mr.
Chibani has not yet been baptized. He offered no evidence he has been taking
any training in the tenets of the Catholic faith. However, in this case, it is
not necessary to enter into an analysis of religious standing or how Mr.
Chibani might be viewed in Algeria if he called himself a
Christian and walked around with a Bible in hand.
[12]
There
was no need for an interview because Mr. Chibani was not found outright non-credible.
The officer went on to examine the situation of Christians in Algeria.
[13]
Although
there is a recent law directed against those who attempt to convert Muslins to
other faiths, the Roman Catholic Church is recognized in fact and in law, and
has even been permitted to broadcast on state radio. Although it was noted that
there is some social and religious stigma to converting from Islam, a
conversion as such is not illegal. There is no reason to disturb the finding
that there would be no serious risk of persecution were he to return to Algeria.
BALANCE OF CONVENIENCE
[14]
Mr.
Chibani has had a long history in Canada. He arrived here in the
late 1980s through an agricultural program, and then went clandestine. He only
resurfaced and came to the authorities’ attention some years later when he was
charged with criminally assaulting his wife, a charge on which he was
convicted. He only claimed refugee status in 1996.
[15]
His
refugee claim was rejected and an application for leave and for judicial review
was dismissed. There is also evidence, although Mr. Chibani claims there was confusion
on his part, that he twice failed to present himself to the authorities in
2002. Because of his criminal conviction, he is not entitled to take part in a
special program created that same year by the Quebec and Canadian
governments to allow Algerian nationals to claim permanent residence from within
Canada. He has not
once filed an income tax return despite his twenty years here.
[16]
The
Minister has the obligation to enforce the Act, and there are no equities which
mitigate against him in this case.
[17]
For
these reasons, both motions for stay shall be dismissed.
“Sean Harrington”
Ottawa,
Ontario
October
2, 2006
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