Date: 20000531
Docket: IMM-5423-99
BETWEEN:
SHAKIR HUSSAIN
SADAF HUMA HUSSAIN
SAIRA HUSSAIN
ASFANDYAR HUSSAIN
RUBINA SHAKIR
Applicants
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
NADON J.
[1] On May 16, 2000, I dismissed the Applicants" motion for a stay of execution of a removal order made against them pursuant to which they would be removed to the United States. These are my reasons for that order.
[2] The Applicants are citizens of Pakistan. They entered Canada, via the United States, on October 3, 1995. On that day, they claimed refugee status in Canada. The Applicants are Shakir Hussain, his wife and their three children, one of whom was born in Canada on October 21, 1995.1
[3] Before the Refugee Board, Mr. Hussain claimed that he would be persecuted in Pakistan because of his ethnic group and political opinion " specifically, his membership in the Mohajir Qaumi Movement (the "MQM"). Mr. Hussain alleged that prior to his departure from Pakistan, he was arrested, beaten and tortured on a number of occasions. He also alleged that his father was arrested and murdered, his uncle seriously injured, and his brother shot to death.
[4] Mr. Hussain"s wife and children based their claim on their particular social group " namely, the family. Mrs. Hussain also alleged before the Refugee Board that she had been arrested and detained before leaving Pakistan.
[5] The Refugee Board determined that the Applicants were not refugees. The Board concluded that neither Mr. Hussain nor his wife were credible witnesses and that they had failed to establish the central tenets of their claim " i.e., their Mohajir identity and their affiliation with the MQM. At page 5 of its decision, the Board stated the following:
| Overall, the cumulative effect of the aforementioned issues led the panel to doubt the ethnic origin of the male claimant, his political affiliation with the MQM and his overall credibility. |
[6] The Applicants" application for leave to commence judicial review proceedings was denied by this Court. On September 24, 1997, the Applicants filed an application for consideration under the Post-Determination Refugee Claimants in Canada ("PDRCC") class. That application was denied on July 10, 1998. No leave application was filed by the Applicants.
[7] On August 13, 1998, the Applicants filed a request for exemption from immigrant visa requirements on humanitarian and compassionate ("H & C") grounds. That application was denied on January 25, 1999. The decision, rendered by S. St-Vincent, Immigration Counsellor, reads in part as follows:
| Ministerial exemption may be granted only where sufficient humanitarian grounds exist. A careful examination of all the circumstances of your case did not reveal that such exemption is warranted. Therefore, we cannot study your application for permanent residence in Canada. Consequently, you should submit your application for permanent residence at a Canadian post abroad as required by Subsection 9(1) of the Immigration Act. |
[8] The Applicants are presently seeking leave to commence judicial review of Mr. St. Vincent"s decision. No decision has yet been rendered on their leave application. In their motion before me, the Applicants seek a stay of execution of the removal order pending the final decision of their judicial review proceedings.
[9] I denied the Applicants" motion for a stay of execution of the removal order because I was of the view that the Applicants would not suffer irreparable harm if they were removed to the United States. Notwithstanding Mr. Istvanffy"s very forceful arguments, I am of the view, for the reasons given in Alexandre Mikhailov et al v. MCI , Court Docket IMM-4265-99, dated 29 March 2000, that removal to the United States of failed refugee claimants does not constitute irreparable harm.
[10] Furthermore, I am of the view that should the United States remove the Applicants to Pakistan, this would still not constitute irreparable harm. The Applicants" fear of persecution in Pakistan and, hence, their unwillingness to return to their country, stems principally from their allegations that Mr. Hussain was arrested and tortured in Pakistan by reason of his membership in the MQM. That submission, as I have already indicated, was not accepted by the Refugee Board, which was of the view that both Mr. Hussain and his wife were simply not credible. The PDRCC Officer came to a similar conclusion when she stated at page 3 of her decision:
| À la lecture du dossier, je conclus que les sujets n"ont pas établi de façon crédible qu"ils sont vraiment Mohajirs et qu"ils seront ciblés à leur retour. Monsieur ne sera pas arrêté, considérant son profil personnel de non Mohajir, non membre du MQM, et les documents produits ont été selon moi, fabriqué [sic ] pour supporter leur histoire. Je ne donne pas de poids à ceux-ci. |
| En conclusion, le sujet et sa famille ne seront pas l"objet de sanctions excessives, de traitement inhumain ou de menaces pour leur vie en retournant au Pakistan. |
[11] With respect to the additional documents adduced in support of the H & C application, they did not satisfy me that the Applicants would be tortured upon their return to Pakistan. As a result, I was not satisfied that irreparable harm would occur.
[12] I should note that before Mr. St. Vincent on their H & C application, the Applicants proceeded on the basis that Mr. Hussain was a member of the MQM, notwithstanding the clear findings made by the Refugee Board and by the PDRCC Officer to the contrary. The Applicants seem to be of the view that if they continue to add documents to the record, the credibility findings of the Refugee Board are somehow going to be "reversed" or "forgotten". In my view, that is a mistaken view because the officer who hears an H & C application does not sit in appeal or review of either the Refugee Board or the PDRCC Officer"s decision. Thus, on the H & C application, Mr. St. Vincent could not proceed on the basis that Mr. Hussain was an MQM member, given the Refugee Board"s findings in that respect. In short, the purpose of the H & C application is not to re-argue the facts which were originally before the Refugee Board, or to do indirectly what cannot be done directly " i.e., contest the findings of the Refugee Board.
[13] In conclusion, since I was of the view that irreparable harm would not result if the Applicants were removed to the United States or to Pakistan, I denied their motion to stay the execution of the removal order.
Marc Nadon
Judge
OTTAWA, Ontario
May 31, 2000.
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1 It goes without saying that the child born in Canada was not claiming refugee status.
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