Date: 20010227
Docket: IMM-825-01
Neutral citation: 2001 FCT 130
BETWEEN:
KHALID RAHIM, AZRA RAHIM, KAZIM RAHIM
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
HENEGHAN J.
[1] Mr. Khalid Rahim, his wife Azra Rahim and their son Kazim Rahim (the "Applicants") seek a stay of execution of the removal order which requires their removal from Canada on March 5, 2001.
[2] The Applicants are citizens of Pakistan. In 1998, following an eight-year stay in the United States of America, the Applicants came to Canada and claimed to be Convention refugees. The claim was advanced by Mr. Khalid Rahim as principal Applicant, on behalf of his wife and son. The application for refugee status was refused by the Immigration and Refugee Board, and negative credibility findings were made about the principal Applicant. An application for leave and judicial review was dismissed on October 17, 2000. An application for permanent residence on the basis of humanitarian and compassionate grounds was submitted on October 4, 2000 and remain outstanding.
[3] The Applicants sought a delay in execution of the deportation order from the Removals Officer in the exercise of her discretion pursuant to section 48 of the Immigration Act, R.S. 1985, c. I-2 (the "Act"). The Applicants provided the Removals Officer with a copy of their submissions to the Minister together with a copy of a psychological report which addressed the effects upon them of their pending removal from Canada prior to a determination of their outstanding application for admission into Canada pursuant to section 114(2) of the Act. The Removals Officer declined to delay execution of the removal orders against the Applicants.
[4] The test for granting a stay of a removals order is set out in Toth v. Minister of Employment and Immigration (1998), 56 N.R. 302 (F.C.A.). An applicant must show that there is a serious issue for trial, that irreparable harm which is not compensable in damages will result if the stay is denied, and that the balance of convenience favours the applicant. The test is conjunctive.
[5] In the present case, the Applicants have filed an application for judicial review to quash a direction to report for removal. The Applicants allege that the Removals Officer improperly exercised her discretion when she declined to stay execution of the removals orders, pending the disposition of the outstanding application for landing.
[6] It is clear that this Court has decided that an outstanding application pursuant to section 114(2) of the Act is insufficient to support an application for a stay; see Cuff v. M.C.I. [1999] F.C.J. No. 1865 (F.C.T.D.), Pavalaki v. M.C.I. [1998] F.C.J. No. 338 (F.C.T.D.) and Francis v. M.C.I. [1997] F.C.J. No. 31 (F.C.T.D.) However, the existence of such an application can be considered as one of the circumstances to be taken into account by the Court when dealing with an application for a stay.
[7] In this case, the application was filed prior to a decision by the Court on the application for leave and judicial review from the negative decision of the Immigration and Refugee Board. It was not a last-minute "afterthought" on behalf of the Applicants. However, the fact is not sufficient to meet the threshold of a serious issue for trial, when seen in relation to the decision which is the subject of the most recent application for judicial review.
[8] That application relates to the exercise of discretion by a removals officer. In the absence of some evidence that she improperly exercised her discretion, I am unable to conclude that the Removals Officer acted in a manner inconsistent with her authority and responsibility when she denied the Applicants' request to defer their removal.
[9] The Applicants argue that they will suffer irreparable harm if they are removed from Canada prior to a decision on their outstanding section 114(2) application. Their submissions on this point are directed to questions of risk and danger if they are returned to Pakistan. However, it appears that the Applicants are to be removed to the United States of America, not Pakistan. There is no evidence of irreparable harm in relation to removal to the United States. A finding of irreparable harm requires the production of non-speculative evidence as to irreparable harm; see Atakora v. Canada (Minister of Employment and Immigration) (1993), 68 F.T.R. 112 (F.C.T.D.). Such evidence is not apparent here.
[10] Since the Applicants have failed to show that there is a serious issue for trial and irreparable harm resulting from denial of a stay, they have not met the first two parts of the test in Toth, supra. In these circumstances, it is unnecessary for me to address the question of balance of convenience.
ORDER
[11] The motion for a stay is denied.
"E. Heneghan"
J.F.C.C.
Toronto, Ontario
February 27, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: KHALID RAHIM, AZRA RAHIM, KAZIM RAHIM |
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
| DATE OF HEARING: MONDAY, FEBRUARY 26, 2001 |
| PLACE OF HEARING: TORONTO, ONTARIO |
REASONS FOR ORDER
| AND ORDER BY: HENEGHAN J. |
DATED: TUESDAY, FEBRUARY 27, 2001
| APPEARANCES BY: Ms. Chantal Desloges |
| SOLICITORS OF RECORD: Green & Spiegel |
Barristers & Solicitors
121 King Street West
Suite 2200
Toronto, Ontario
M5H 3T9
Deputy Attorney General of Canada
FEDERAL COURT OF CANADA
Date: 20010227
Docket: IMM-825-01
Between:
| KHALID RAHIM, AZRA RAHIM, KAZIM RAHIM |
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
AND ORDER
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