Jamal v. Canada (Minister of Citizenship and Immigration), 2001 FCT 494

Date: 20010516

Docket: IMM-2383-01

Neutral citation: 2001 FCT 494

BETWEEN:

                              SYED MUBASHIR JAMAL

                                                                                            Applicant

                                                 - and -

   THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                        Respondent

                                REASONS FOR ORDER

DUBÉ J.:

[1]    This application for an urgent and last minute conference call to deal with a stay of deportation was filed on behalf of the applicant on the ground that he will suffer irreparable harm if he is removed to Pakistan, his country of origin.

1. Facts

[2]    The applicant who claims to be a member of the MQM Party alleges that he experienced persecution in Pakistan alongside his brother Abuzar Jamal, also a member of the MQM Party. His brother fled Pakistan and filed a refugee claim in the United States in 1990. The applicant fled Pakistan in 1995 to Canada where he made a refugee claim. However, he left Canada shortly thereafter to join his brother in the United States. Consequently, his refugee claim in Canada was declared abandoned and a deportation order was issued.

[3]    In the Unites States, the applicant made a refugee claim but he returned to Canada on March 4, 2001, so as to become reunited with his fiancée in this country. Since the applicant had entered the United States without lawful permission, a warrant was executed against him in 1996. On his return to Canada, he was apprehended and is presently incarcerated. The applicant has been in Canada since March 4, 2001. He waited until May 11, 2001, to apply for landing on a humanitarian and compassionate basis.

2. Threshold Issue

[4]                When seeking a stay at the 11^th hour, an applicant must bring forward all the relevant facts, and not merely a partial story showing only facts favourable to his application^[1]. The applicant has commenced and abandoned refugee protection procedures in Canada and the United States, two signatories of the Convention on the Status of Refugee. In over six years since he left Pakistan he has failed to diligently pursue his refugee claims either in Canada or the United States. His present application imposes a risk assessment upon the removal officer at this late stage.

[5]                A removal officer's jurisdiction under section 48 of the Immigration Act ("the Act")^[2] is to execute removal orders "as soon as reasonably practicable". The removal officer has some discretion to defer the execution of a removal but cannot be expected to act as a last minute humanitarian and compassionate assessment tribunal^[3]. There is jurisprudence in this Court to the effect that the discretion of a removal officer is very limited and that he may consider various factors such as illness, other impediments to travelling, and pending H & C applications that were brought on a timely basis^[4].

[6]                In the recent Wang^[5] decision, my colleague Pelletier J. fully analysed the jurisprudence on the removal officer's discretion to defer a removal. These three paragraphs from his reasons for order shed considerable light on the matter:

[43] This analysis sketches the logical boundaries of the discretion to defer. What are the legal boundaries? The grant of discretion found in section 48 of the Act may not contemplate that deferral is appropriate whenever it could logically make a difference. In fact, the imperative terms of section 48 of the Act suggest otherwise. Furthermore, there is a line of authority to the effect that the mere presence of an outstanding H & C claim, is not grounds for a stay of execution (and by extension, for a deferral). Finally, defining the discretion to defer too broadly risks creating the equivalent of a statutory stay where Parliament declined to do so. What limits are imposed upon the range of available options by the expression "as soon as reasonably practicable"?

[44] Obviously, there is a range of factors arising from the mechanics of making travel arrangements which will require the exercise of some judgment and discretion. The vagaries of airline schedules, the uncertainties related to the issuance of travel documents, medical conditions affecting the ability to travel, these are all factors which could result in removal being rescheduled. Beyond that are factors outside the narrow compass of travel arrangements but which are affected by those arrangements such as children's school years, pending births or deaths. These too could influence the timing of removal. These arise even on the narrowest reading of section 48 of the Act.

[45] The order whose deferral is in issue is a mandatory order which the Minister is bound by law to execute. The exercise of deferral requires justification for failing to obey a positive obligation imposed by statute. That justification must be found in the statute or in some other legal obligation imposed on the Minister which is of sufficient importance to relieve the Minister from compliance with section 48 of the Act.    In considering the duty imposed and duty to comply with section 48, the availability of an alternate remedy, such as a right of return, should weigh heavily in the balance against deferral since it points to a means by which the applicant can be made whole without the necessity of non-compliance with a statutory obligation. For that reason, I would be inclined to the view that, absent special considerations, an H & C application which is not based upon a threat to personal safety would not justify deferral because there is a remedy other than failing to comply with a positive statutory obligation.

[7]                In the instant case, the applicant filed, along with the instant motion, an H & C application based upon the threat to his personal safety. The removal officer gave little credibility to an allegation of risk brought forward at the 11^th hour. This Court has on numerous occasions emphasized that persons who failed to allege a risk at earlier appropriate junctures cannot expect the removal officer to set aside his travelling arrangements so as to conduct a quick risk assessment before executing the duty imposed upon him by the Act. In my view, a removal officer may only entertain such an application where the alleged risk is obvious, very serious and could not have been raised earlier. Such is not the case here.

3. Disposition

[8]                Consequently, the applicant does not meet the first criterion for a stay.    Thus, this late application for a stay based on an allegation of risk by the applicant cannot be granted.

[9]                The application is dismissed.

OTTAWA, Ontario

May 16, 2001

                                                                                                   Judge