Date: 20050913
Docket: IMM-5013-05
Citation: 2005 FC 1259
Vancouver, British Columbia, Tuesday, the 13th day of September 2005
Present: THE HONOURABLE MR. JUSTICE ROULEAU
BETWEEN:
BAHADUR SINGH BHALRU
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] On September 12, 2005, this Court entertained an application for a stay of an outstanding removal order issued in April 2003, and to be executed on Wednesday, September 14, 2005. The basis to determine the underlying issues arise out of a PRRA decision dated August 5, 2005, an application for judicial review having been filed on August 17, 2005.
[2] The Applicant is a 26-year-old citizen of India who has been in Canada since 1997, when he immigrated to Canada with his parents. He still resides with his parents, a sister, and grandmother in Vancouver.
[3] He has been gainfully employed for most of his adult life, had no criminal record and is a devout and practicing Sikh. Unfortunately, he was involved in a car racing episode along with another individual and, as a result of the reckless driving of their respective motor vehicles, a pedestrian was struck and killed.
[4] In the year 2000, he was convicted of Criminal Negligence Causing Death contrary to section 220(b) of the Criminal Code of Canada and was sentenced to two years less a day house arrest to be followed by three years' detention.
[5] The deportation order was issued pursuant to 36(1)(a) of the Act which determines that a permanent resident is inadmissible for serious criminality when convicted of an offence where a term of imprisonment of more than six months has been imposed.
[6] The Immigration Appeal Board entertained an appeal of the deportation order in May 2004 and rendered a negative majority decision in October 2004. This decision was upheld on judicial review by this court in June 2005.
[7] A pre-removal risk assessment was requested and entertained; a decision was rendered on August 5, 2005. As stated earlier, an application for judicial review of the decision has been filed with the court. There is an outstanding H & C application as well as a petition filed with the Minister of Immigration seeking a Temporary Resident Permit. This was followed by a further letter to the Minister dated August 21, 2005, seeking ministerial intervention to stay the Applicant's removal from Canada. No reply has been received from the Minister and none of the judicial proceedings have yet been entertained by ministry officials or the court save and except with respect to this stay of the removal order.
[8] Counsel for the Applicant suggested the fact that the H & C application had only been recently submitted and that the Minister had not yet replied to submissions indicates that the execution of the removal order should be delayed. It was also submitted that if the Applicant is not "sur place" the pursuit of other remedies may be at a disadvantage.
[9] May I point out that both immigration officers, as well as the Court, are seldom concerned as to whether or not an Applicant remains in Canada when requested to entertain and determine a particular issue. Furthermore, it has been my experience that most hearings involving immigration matters are argued by counsel without the presence of an applicant. It is also well established that even if an H & C application remains outstanding, it is not a bar to refusing the granting of a stay.
[10] Another reason advanced in seeking a delay arises out of a decision rendered public only last Friday, September 9: a decision concerning this Applicant's co-accused, Mr. Khosa, also involved in the racing incident. The Court had entertained an appeal of his friend's similar determination by the Immigration and Refugee Board wherein relief of his removal order was also sought and denied. This Court upheld the finding but in obiter it suggested the possibility of a question being submitted to the Federal Court of Appeal on the issue of whether or not one should refuse a stay of removal order where the person to be removed for serious criminality had not been incarcerated. Certainly, when questions are put to the Court of Appeal all proceedings are suspended until such time as the matter has been adjudicated on appeal. If this was to occur in Mr. Khosa's case, the removal order would be suspended until a ruling would be handed down.
[11] I am not prepared to accede to this request. May I say from the outset that it would be pure speculation on my part to conclude as to whether or not a question would be ultimately submitted to the Court of Appeal. Further, it is entirely discretionary as to whether or not a question should be submitted, and finally, though the section refers to a term of imprisonment, one should remember that this is entirely within the discretion of the sentencing judge to determine if a term of imprisonment should be imposed, rather than a suspended sentence or house arrest. Many issues must be considered in sentencing as to what is in the best interest of an accused and society. Age, infirmity, rehabilitation, and many other factors are taken into account and it has yet to be determined if house arrest should or should not be considered incarceration.
[12] Should an individual be successful on any of the pending outstanding applications, it is well established that an Applicant will probably be permitted to return to Canada at public expense.
[13] It was suggested by counsel for the Minister that I should not be concerned with the outstanding H & C application since most of the humanitarian and compassionate grounds were already before the Immigration Appeal Board, as well as before this Court on judicial review. As counsel for the Applicant pointed out, the H & C application itself is submitted containing greater evidence and emphasis. I accept this rebuttal and will not entertain any further discussion on this issue. May I say, in closing, that the H & C process is designed to find relief for unusual, undeserved and disproportionate hardship and will be decided on its merits.
[14] I now turn to the issue underlying this stay application, the PRRA decision. In order to satisfy the Court that the Applicant should be granted a stay of the removal order, he must meet the tri-partite test of serious issue, irreparable harm and balance of convenience.
[15] At this juncture, my position involves a preliminary assessment of the merits of the decision under attack: has the Applicant raised a serious issue to be tried on the leave application?
[16] The Applicant was assessed against section 97 of the Act. Would the subject be in danger, or substantial grounds of a risk to his life or risk of cruel and unusual treatment or punishment if returned to his former country of habitual residence?
[17] The PRRA officer examined the documentary evidence and weighed various factors both favourable and unfavourable. She was satisfied that the Applicant may have some subjective fear of returning to India but there was no risk of cruel and unusual punishment directed to the Applicant.
[18] She is aware of arbitrary arrests; that prisoner conditions are poor and jailers are reported to torture new prisoners for money; that police may arrest to obtain money through bribes and that in rural areas the practice is more prevalent. She then points out that India is a long-standing parliamentary democracy; that the judiciary is independent; that avenues of redress exist for those who have been subjected to extortion by the police, and though there are ongoing abuses committed by Indian security forces, it appears that those being sought out are because of national security threats and others who commit violent crimes in India.
[19] She concluded that the Applicant was not similarly situated to those targeted groups. She also refers to evidence that citizens returning to India did not have problems if they returned with valid travel documents, and that returnees may be sought if they were a security risk or suspected of being separatists.
[20] I must conclude along with the PRRA officer that this Applicant does not appear to fall into any of the mentioned categories of individuals at risk.
[21] What counsel for the Applicant emphasizes is the fact that the Applicant will be deported back because of criminality and this would be cause for great concern if authorities learned of his conviction in Canada.
[22] This was of concern to the PRRA officer but she found there was insufficient evidence to support a finding of risk to life and of cruel and unusual punishment. Relying on documentary evidence, she wrote that she was satisfied that no one would be prosecuted for a same offence and concludes that it is unlikely that the Applicant would be marked or targeted as a criminal in India which could result in abuse at the hands of the authorities.
[23] It was suggested that since the case has attracted considerable media and public attention, there was a lot of pressure to deport the Applicant and, as a result the pressure did not allow for a full and fair consideration of the Applicant's PRRA application.
[24] I am satisfied that there was a fair and objective risk assessment and the Court should not interfere with findings unless it can be persuaded that the decision-maker based her conclusions on erroneous findings of fact or that they were made in a perverse or capricious manner of which I have not been persuaded.
[25] What may occur on his return to India is mere speculation. There is no evidence of possible harm, as claimed. There must be credible evidence of likelihood of harm to satisfy the test. I have not been persuaded, on the balance of probabilities, that his safety might be at risk and, as a result, I am not convinced that there is a serious issue to be tried even though the threshold to satisfy this branch of the test is low.
[26] Turning to irreparable harm, I must be similarly satisfied on the evidence that irreparable harm may befall the Applicant. The harm cannot be speculation; the Court must be satisfied on the evidence that the Applicant's life or safety may be at risk. There has been no persuasive evidence that he faces a substantial danger of being tortured if returned home. At best, it can be said that if Indian authorities become aware of his Canadian criminal conviction, he could be ostracized and harassed. I conclude there is no evidentiary underpinning to support the allegation of irreparable harm.
[27] Finally, one must consider the balance of convenience. The Court must give equal consideration to the interests of both parties. There are no facts before me to suggest serious consequences to himself or his family from a financial point of view. The Court must not thwart the efficient operation of immigration legislation. There is a public interest in having a system which operates in an efficient, expeditious and fair manner. The Act requires the immigration officers to perform their duty as directed by Parliament.
[28] For the above reasons, the application for stay is denied.
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