Date: 20070130
Docket: IMM-6065-06
Citation: 2007 FC 96
Montreal, Quebec, January 30, 2007
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
Faraz
Ulhaq QURESHI
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
I
am sympathetic to the argument that the break up of a family unit produces
substantial hardship which, in some circumstances, but not all, approaches the
level or reaches the level of irreparable harm to the family unit. That is not
the test. The issue, of course, is irreparable harm to the applicant.
In Mariona v. Canada
(Minister of Citizenship and Immigration) (2000), 9 Imm. L.R.
(3d) 58, [2000] F.C.J. No. 1521 at paragraph 14 (F.C.T.D.) (QL) Justice Pierre Blais
adopted the reasoning of Justice Frederick Gibson in Robinson v. Canada
(1994), 74 F.T.R. 316 at
paragraph 7 (F.C.T.D.)
JUDICIAL PROCEDURE
[2]
On
January 17, 2007, Mr. Faraz Ulhaq Qureshi filed a motion in which he is seeking
a stay of the removal order that is scheduled to be carried out on January 31,
2007.
[3]
Mr.
Qureshi seeks a stay until his Application for Leave, filed on January 17,
2006, has been disposed of by this Court. This Application challenges the
decision of the immigration officer, in which she refused the Applicant’s
request for protection pursuant to subsection 112(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act), which provides for a
Pre-Removal Risk Assessment (PRRA).
ISSUE
[4]
Has
Mr. Qureshi demonstrated that he satisfied the tri-partite test, which this
Court has decided, must be applied when it is called upon to decide whether or
not to stay the execution of a removal order?
ANALYSIS
[5]
In
accordance with the jurisprudence of this Court, in order for Mr. Quereshi to
succeed on this motion, he must demonstrate that al of the three elements of
the tri-partite test identified by the Federal Court of Appeal in Toth v. Canada (Minister of
Employment and Immigration), [1998] F.C.J. No. 587 (QL), have been
established. Accordingly, Mr. Qureshi bears the burden of establishing that:
a) A serious
issue will be tried in the Application for Leave that he filed with his motion;
b) He will
suffer irreparable harm, if the removal order is executed; and,
c) The balance
of convenience favours him rather than the Minister.
(RJR-MacDonald Inc. v. Canada
(Attorney General), [1994] 1 S.C.R. 311 (QL); Wang v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 148, [2001] F.C.J. No. 295 (QL);
Mikhailo v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 642 (QL).)
SERIOUS ISSUE
[6]
Mr.
Qureshi alleges that he fears returning to Pakistan because of
his political opinion and by reason he is married to a Christian woman and had
a child without being married. In summary, he states that:
i) In his Personal
Information Form (PIF), The Applicant alleged that he is a shia and fears the
Terrorist Sunni group, Sipah-e-Sahaba (SSP), more particularly Shahi Hassan. In
his PRRA application, he continued to allege that he still fears this
organization.
ii) The Applicant also
alleged in his PRRA application that his family and other individuals came to
know about his relationship with a Christian woman and that a child was born
from this union. The Sipah-e-Sahaba leader became aware of this situation and
threatened to kill him. The police also enquired about him. He alleges a fear
persecution at the hands of Sipah-e-Sahaba and the police who might arrest him
according to Islamic law as he committed “zina”.
The Applicant’s fear of persecution at
the hands of Sipah-e-Sehaba for being a Shia
[7]
The
PRRA officer noted in its decision that Mr. Qureshi’s fear of persecution at
the hands of the SSP, raised by him in his PRRA application, is exactly the
same fear that he alleged in his PIF that was before the Refugee Protection
Division (RPD).
[8]
The
PRRA officer noted in her reasons that the RPD concluded that Mr. Qureshi was
not credible in relation to his alleged fear.
[9]
In
dismissing the claim, the RPD, having had the first opportunity to hear Mr.
Qureshi, drew a large number of conclusions of fact that are now res
judicata. (Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R.
460, at para. 24).
[10]
The
RPD drew these principal conclusions:
·
The
Applicant was not credible when he testified about his previous passport. The
Applicant’s testimony about the Sunni mosques and SSP offices was not
consistent with the documentation.
·
His testimony
was not credible when he testified about the problems he had with the JKLF,
which at the time was trying to recruit him.
·
The
Applicant contradicted his narrative when he testified about the reasons the
Molvi wanted to kill him.
·
The
Tribunal found it implausible, in light of documentary evidence, that the
Applicant experienced threats to his life, while his father experienced none.
·
The
Applicant was not credible when he explained that the SSP was still looking for
him at the time of his hearing in 2004.
·
The
Applicant was unable to cite any one of the 35 Shia publications. Consequently,
the Tribunal did not believe he was involved in Shia activities as alleged.
·
The Applicant
did not ask for protection in the USA
although he lived there many years.
·
A
verification of a medical certificate which resulted have been found a
counterfeit.
(Exhibit A of Ketsia Dorceus’ Affidavit)
[11]
Mr.
Qureshi’s allegations, which formed the basis of his PRRA application, and this
motion for a stay of his removal, were not believed by the RPD. Furthermore, the
PRRA officer, after a careful review of Mr. Qureshi’s entire immigration file,
came to the same conclusion.
[12]
It
is not the role of this Court to substitute its own understanding of the facts
for that of the PRRA officer.
The
Applicant’s fear of persecution because he committed “Zina”
[13]
Mr.
Qureshi alleges that the PRRA officer discredited some of his evidence on an
arbitrary basis.
[14]
The
PRRA officer gave a limited probative value to certain documents considering
the contradictions that arose from the evidence and the fact the documents were
from a non independent source and unreliable. The conclusions of the agent are
based on the following:
- First, the agent
did not give that much probative value to documents 1 and 2, as the
objective documentary evidence does not corroborate the information that
the Applicant would be at risk should he return to Pakistan for
committing “zina”.
- No probative value
was given to document 3 as it is not accompanied by any proof of
transmittal. Furthermore, there is no mention that this is an original or
a translation of an original.
- In relation to
document 4, no probative value was given as the translation was not
certified and that there was no proof of transmittal.
- The objective
documentary evidence does not support Ms. Dizon’s contention for document
5.
[15]
Considering
the above-mentioned reasons and that there was no proof that certain documents
were really issued to the officer, she reasonably did not give any probative
value to the evidence submitted.
[16]
As
a consequence, the PRRA officer concluded that Mr. Qureshi has not established
that he would be personally at risk from the SSP by reason of “zina” should he
return to Pakistan.
[17]
Second,
the PRRA officer concluded that the objective documentary evidence did not
corroborate Mr. Qureshi’s allegation of risk because of “zina”. The officer
more specifically states that an amendment to the Islamic law in 2004, in relation
to “zina”, in that the sharia application does not result with a death execution
as alleged by Mr. Qureshi in his application. The application of the law is
more strict when a woman is implicated which is not Mr. Qureshi’s case.
[18]
In
his submission, citing the document PAK100060, Mr. Qureshi stated that the
officer made a selective analysis of the evidence in this regard.
[19]
Accordingly,
after careful reading of this document, there was no passage that would
corroborate Mr. Qureshi’s allegation. (Exhibit C of Ketsia Dorceus’s
Affidavit).
[20]
The
PRRA officer’s decision is supported by the evidence, and Mr. Qureshi has
failed to establish that the officer ignored relevant evidence, or that she
erred in any other way.
irreparable
harm
Allegations of deportation by the
American authorities to an Applicant’s country, is considered by this Court to
be “speculative”
[21]
This
Court has established that the issue of irreparable harm must be evaluated in
relation to the country, to which the Minister proposes to return an
individual. (Kerrutt v. Canada (Minister of Employment
and Immigration), (1992) 53 F.T.R. 93, [1992] F.C.J. No. 237 (QL).)
[22]
Allegations
of deportation by the American authorities to an Applicant’s own country, is
also considered by this Court to be “speculative”. Such speculations do not
satisfy the requirement than an Applicant must face “irreparable harm”, in
order for the stay of a removal order to be granted. (Rahim v. Canada
(Minister of Citizenship and Immigration), 2001 FCT 130, [2001] F.C.J. No.
271 (QL), at para. 9; Aquila v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 36 (QL), at para. 15; Karthigesu
v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 1038 (QL), at para. 15;
Gomez-Carillo v. Canada (Minister of Citizenship and Immigration),
[1997] F.C.J. No. 425 (QL), at paras. 5 and 6; Qawdan v. Canada (Minister of
Citizenship and Immigration), [1992] F.C.J. No. 334 (QL), at para. 18; Kaberuk
v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 369
(QL), at para. 4.)
The Applicant has not established that he
faces a risk should he return to Pakistan
[23]
Mr.
Qureshi’s application for a PRRA was denied after a complete and thorough
assessment of the evidence presented by him, as well as an assessment of
documentary evidence obtained through independent sources. The PRRA Officer
concluded that there exists no more than a slight possibility that Mr. Quereshi
would be the subject of persecution or torture, if he were to return to Pakistan.
[24]
Mr.
Quereshi’s risk of a return to Pakistan has been evaluated
several times. The RPD concluded that Mr. Quereshi was not a Convention refugee
(Exhibit A of Ketsia Dorceus’s Affidavit). His PRRA application was denied.
Detention in
the USA does not
constitute irreparable harm
[25]
Justice
Sandra Simpson in Calderon v. Canada (Minister of
Citizenship and Immigration), [1995] F.C.J. No. 393 (QL), stated the
following in relation to the meaning of “irreparable harm”:
[22] In Kerrutt v. M.E.I.
(1992), 53 F.T.R. 93 (F.C.T.D.) Mr. Justice MacKay concluded that, for the
purposes of a stay application, irreparable harm implies the serious likelihood
of jeopardy to an applicant's life or safety. This is a very strict test and I
accept its premise that irreparable harm must be very grave and more than the
unfortunate hardship associated with the breakup or relocation of a family.
[26]
This
Court has stated that arguments to the effect that an applicant may risk
detention in the United States are too speculative to support a
conclusion of “irreparable harm”. In Mikhailov, above, Justice Marc
Nadon stated the following:
[12] Even if the Applicants
were detained, I am not convinced that this would constitute irreparable harm.
Irreparable harm is not mere inconvenience or financial or emotional hardship.
(See also: Karthigesu,
above, at para. 10; Minister of Employment and Immigration v. Satiacum,
[1999] F.C.J. No. 505 (F.C.A.) (QL); Nabut v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 1392, [2001] F.C.J. No. 1878 (QL); Akyol
v. Canada (Minister of
Citizenship and Immigration), 2003 FC 931, [2003] F.C.J. No. 1182 (QL),
at para. 10; Joao v. Canada (Minister of
Citizenship and Immigration), 2005 FC 880, [2005] F.C.J. No. 1103 (QL),
at para. 10.)
The fact that the Applicant will be
separated from his wife does not constitute “irreparable harm”
[27]
Mr.
Qureshi argues the fact he will be separated from his wife constitutes
“irreparable harm”.
[28]
It
is to be emphasized that Mr. Quereshi and his wife met in December 2004 and
their daughter was born on October 2005. Furthermore, they were married in June
2006. It is only in September 2006 that the application for sponsorship was
submitted. Mr. Qureshi himself is responsible for not having ensured his status
in Canada.
[29]
It
should be emphasized that the jurisprudence of this Court establishes that
“irreparable harm” implies the “serious likelihood of jeopardy to an
applicant’s life or safety”. It must be “very grave and more than the
unfortunate hardship associated with the break-up or relation of a family”. (Kerrutt,
above; Simpson v. Canada (Minister of Employment
and Immigration), [1993] F.C.F. No. 380 (QL); Calderon, above; Mobley v. Canada (Minister of
Citizenship and Immigration), [1995] F.C.J. No. 65 (QL); Mallia v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 369 (QL); Mikhailov,
above; Aquila, above; Perry v. Canada (Minister of Public Safety and
Emergency Preparedness), 2006 FC 378, [2006] F.C.J. No. 473 (QL), at para.
31.)
[30]
Even
where separations caused by removal may produce substantial economic or
psychological hardship to a family unit, the test remains whether Mr. Qureshi
himself will suffer irreparable harm. (Mariona, above; Carter v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1011
(QL).)
[31]
There
are no grounds upon which this Court could make a finding that Mr. Qureshi will
suffer “irreparable harm” should he be returned to the United States.
c) The
balance of convenience favours the Minister
[32]
According
to section 48 of the Act, the Respondent has a duty to execute an enforceable
removal order “as soon as is reasonably practicable”:
|
48. (1) A removal order is
enforceable if it has come into force and is not stayed.
(2) If a removal order is enforceable,
the foreign national against whom it was made must leave Canada immediately and it must be
enforced as soon as is reasonably practicable.
|
48. (1) La mesure de
renvoi est exécutoire depuis sa prise d’effet dès lors qu’elle ne fait pas
l’objet d’un sursis.
(2) L’étranger visé par la mesure de
renvoi exécutoire doit quitter immédiatement le territoire du Canada, la
mesure devant être appliquée dès que les circonstances le permettent.
|
[33]
In order to demonstrate that the balance of convenience favours Mr.
Qureshi, the latter should have demonstrated that there is a public interest not
to remove him as scheduled:
RJR-MacDonald, above; Blum
v. Canada (Minister of Citizenship and Immigration) (1994), 90 F.T.R. 54,
[1994] F.C.J. 1990 (QL).)
[34]
As stated by the Mr. Justice Sopinka in Canada (Minister of Employment and Immigration) v. Chiarelli (1992) 135 N.R. 161, [1992] 1 S.C.R. 711 (though dealing
with an extradition case):
…The most
fundamental principle of immigration law is that non-citizens do not have an
unqualified right to enter or remain in the country…
[35]
The Applicant has not demonstrated that the balance of
convenience favours the non-application of the law :
(iii) Balance of
convenience
[21] Counsel says that since the appellants have no criminal
record, are not security concerns, and are financially established and socially
integrated in Canada, the balance of convenience favours maintaining the status
quo until their appeal is decided.
[22] I do not agree. They have had three negative administrative
decisions, which have all been upheld by the Federal Court. It is nearly four
years since they first arrived here. In my view, the balance of convenience
does not favour delaying further the discharge of either their duty, as persons
subject to an enforceable removal order, to leave Canada immediately, or the
Minister's duty to remove them as soon as reasonably practicable: IRPA,
subsection 48(2). This is not simply a question of administrative convenience,
but implicates the integrity and fairness of, and public confidence in, Canada's
system of immigration control.
(Shelliah v. Canada (Minister of Citizenship
and Immigration), 2004 FCA 261 (C.A.F.), [2004] F.C.J. No. 1200 (QL); Dasilao
v. Canada (Minister of Citizenship and Immigration), 2004 FC 1168
(F.C.), [2004] F.C.J. 1410 (QL); Membreno-Garcia v. Canada (Minister of Employment and Immigration), [1992] 3 C.F. 306, [1992]
A.C.F. No. 535 (QL); Kerrutt, above.)
CONCLUSION
[36]
The Applicant’s Motion to
stay the execution of the removal order is denied.
JUDGMENT
THIS COURT ORDERS that the motion for an order to
stay the removal
be dismissed.
“Michel M.J. Shore”
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