Date: 20050318
Docket: IMM-1621-05
Citation: 2005 FC 388
BETWEEN:
AL CHIMI MAHAMOUD HISSEINE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
de MONTIGNY J.
[1] These reasons follow my Order of March 16, 2005, whereby I dismissed the applicant's motion for a stay of his removal from Canada, in relation to IMM-1621-05.
[2] The Applicant has brought this motion to stay the execution of his removal from Canada to the United States of America on Thursday March 17, 2005. The underlying application for leave and for judicial review pursuant to which this motion has been brought challenges Removal Officer Steve Amadio's refusal to defer removal, as well as the negative decision from the PRRA Officer that was made on February 17, 2005.
[3] Pursuant to Rule 302 of the Federal Court Rules, 1998, an application for judicial review is limited to a single order in respect of which relief is sought. Applicant's counsel has acknowledged that a separate application for judicial review should be made with respect to the decision of PRRA Officer, and has accordingly focussed his submissions on the Removal Officer's decision not to defer the removal of the Applicant.
[4] After having reviewed the parties' motion records and heard counsel by teleconference on March 16, 2005, I have come to the conclusion that the motion should be dismissed for the following reasons. I am governed by the tripartite test for granting a stay as set out by the Supreme Court of Canada in R.J.R. MacDonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. 311, and by the Federal Court of Appeal in Toth v. M.E.I., (1988) 86 N.R. 302. As a result, three questions have to be answered: 1) Is there a serious question to be tried; 2) Has the litigant seeking the stay demonstrated that he would suffer irreparable harm if the stay is not granted; and 3) Which of the two parties would suffer the greater harm from the granting or refusal of the stay pending a decision on the merits of the underlying application.
[5] As for the serious question, it is the applicant's submission that there has been a serious breach of natural justice resulting from the fact that, without his knowledge, his previous counsel did not make any submission on his behalf in the context of his PRRA application. Counsel for the applicant also submits that the removal officer should have deferred the removal of the applicant until his pending Humanitarian and Compassionate application, filed nine months ago, was dealt with, and should have performed his risk assessment in light of that application.
[6] It is trite law that a Removal Officer has a very limited discretion to defer removal, and that he is not meant to act as a last minute humanitarian and compassionate assessment tribunal. Evan if the conduct of his previous counsel may eventually be assessed to amount to a serious breach of confidence and professional conduct, the fact remains that the Applicant did not present material to the Removals Officer which would support his allegation that he is personally at risk or that there was specific information relating to his circumstances that should have been considered by the PRRA Officer. Indeed, his H & C application is devoid of any allegation of personal risk were the applicant be returned to Chad, and deals only with the human rights situation in this country by quoting from the US State Department Country Report on Human Rights Practices. Finally, it is worth repeating that an outstanding Humanitarian and Compassionate application is not a bar to removal, as it can proceed in the absence of the applicant. For all these reasons, and despite the fact that the threshold is a low one, I am of the view that the applicant has not demonstrated that there is a serious issue arising out of the Removal Officer's decision not to defer removal.
[7] This conclusion, in itself, would be sufficient to dismiss the motion for a stay. But having carefully considered the evidence and the submissions made by counsels, I am also of the view that the applicant has not established that he would suffer irreparable harm if removed to the United States in the current circumstances. Counsel for the applicant argued that he will most likely be detained and eventually sent back to Chad because he will not be allowed to apply for refugee status, having failed to obtain that status in Canada. This detention would be detrimental in light of the fact that the Applicant apparently suffers from Post Traumatic Stress Disorder.
[8] The Applicant has not satisfied the Removal Officer or a PRRA officer that he is at risk if he is returned to Chad. But more to the point, the Applicant is not being returned to Chad but to the United States. This hardly constitutes irreparable harm, as this Court has found in the past that it must be assumed the US authorities will treat the Applicant fairly and provide necessary medical treatment.
[9] In the circumstances, the balance of convenience clearly favours the Respondent, since it is in the public interest that deportation orders be executed as soon as reasonably practicable.
[10] This Court orders that this motion for a stay be dismissed.
(s) "Yves de Montigny"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1621-05
STYLE OF CAUSE: AL CHIMI MAHAMOUD HISSEINE v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Ottawa and Toronto via teleconference
DATE OF HEARING: March 16, 2005
REASONS FOR ORDER: Mr. Justice de Montigny
DATED: March 18, 2005
APPEARANCES:
Mr. Omar Shabbir Khan FOR THE APPLICANT
Ms. Janet Chisholm FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Omar Shabbir Khan
Hamilton, Ontario FOR THE APPLICANT
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT
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