Ayub v. Canada (Solicitor General), 2006 FC 147

Date: 20060207

Docket: IMM-566-06

Citation: 2006 FC 147

Toronto, Ontario, February 7, 2006

PRESENT:      The Honourable Mr. Justice von Finckenstein

BETWEEN:

KHALID AYUB

Applicant

and

THE SOLICITOR GENERAL OF CANADA

Respondent

REASONS FOR ORDER AND ORDER

[1]           The Applicant, Khalid Ayub, seeks a stay of his deportation scheduled for February 9, 2006. The Applicant is a Shia male from Pakistan who fears the Sipah-e-Sahaba Sunni militants due to his political activities.

[2]           The Applicant came to Canada in 1997. His application for refugee status was denied on July 8, 2002, and his application for leave to seek judicial review of the Immigration and Refugee Board=s decision was unsuccessful. He made a Pre-Removal Risk Assessment ("PRRA") application which was resulted in a negative decision on January 10, 2006.

[3]           In order to be succeed, the Applicant must satisfy the tripartite and conjunctive test set out in Toth v. Canada(Minister of Employment and Immigration) (1988), 6 Imm. L.R. (2d) 123. Thus, the stay will only be granted if the Applicant satisfies all three requirements.

[4]           With respect to irreparable harm the Applicant submits that although he is being deported to the United States, he will ultimately deported to Pakistan where he will suffer persecution and threats to his life.

[5]           The Applicant has not submitted any evidence of a risk of harm if he is deported to the United States. While the Applicant submits that he may subsequently be deported to Pakistan from the United States, as he does not have status in that country, no evidence has been produced as to that submission. Consequently, I find that he has not met the irreparable harm leg of the Toth test.

[6]           In addition, with respect to the balance of convenience leg I can=t help but notice that the Applicant=s principal concern, the risk he faces in Pakistan has now been assessed twice; once by the Immigration and Refugee Board and then by the PRRA Officer. Each time there was a negative determination as to risk. Thus, the balance of convenience now favours the Respondent who has a duty to give effect to removal order in an expeditious manner. Accordingly, the Applicant also fails to meet this part of the Toth test.

[7]           Accordingly, the application for stay is denied.

ORDER

THIS COURT ORDERS that this Application be dismissed.

"K. von Finckenstein"

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           IMM-566-06

STYLE OF CAUSE:                           KHALID AYUB

                                                                                                                APPLICANT

and

                                                           THE SOLICITOR GENERAL OF CANADA

                                                                                                                RESPONDENT

PLACE OF HEARING:                     TORONTO, ONTARIO

DATE OF HEARING:                       FEBRUARY 6, 2006

REASONS FOR ORDER

AND ORDER:                                    von FINCKENSTEIN J.

DATED:                                              FEBRUARY 7, 2006   

APPEARANCES:

Lani Gozlan                                                                               FOR THE APPLICANT

A. Leena Jaakkimainen                                                  FOR THE RESPONDENT

SOLICITORS OF RECORD:

Max Berger Professional Law Corporation

Barristers & Solicitors

Toronto, Ontario                                                                       FOR THE APPLICANT

John H. Sims, Q.C.

Deputy Attorney General of Canada                                          FOR THE RESPONDENT