Date: 20070926
Docket: IMM-3783-07
Citation: 2007
FC 970
Ottawa, Ontario, September 26, 2007
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
MOHSIN
HAFEEZ MUGHAL
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
[1]
UPON motion, dated the 19th
day of September, 2007, on behalf of the Applicant for an Order granting the
stay of the deportation of the Applicant that is to take place on Thursday,
September 27, 2007. The Applicant is set to be removed to the United States.
[2]
AND
UPON review
of the parties’ motion records;
[3]
AND
UPON hearing
submissions of counsel for the applicant and respondent on September 24, 2007
in Toronto;
[4]
The
applicant seeks an order for a stay of removal to the United States scheduled until his Application for
Leave and, if Leave is granted, until such time as the Judicial Review is
finally disposed of by this Court.
[5]
The
applicant is a citizen of Pakistan who entered Canada from the United States on July 5, 2002. He made a
claim for refugee status at the border. He has been married to Shamin Ara
Orpieeta, a Canadian citizen since January 13, 2006 and is stepfather to her
son.
[6]
The applicant’s
refugee claim was denied on July 14, 2005 and his Pre-Removal Risk Assessment was
found to be negative on August 3, 2007. He submitted in Canada Spousal
Application for Permanent Residence on September 6, 2007. He is scheduled to
be deported on September 27, 2007 and his request to defer removal was denied
on September 14, 2007.
The Test for Granting Interlocutory
Relief
[7]
The
Supreme Court of Canada test for granting interlocutory relief in a stay
proceeding may be described as follows:
a. There must be a serious
question to be tried in the underlying proceeding;
b. There must be irreparable harm
to the applicant if the stay of removal is not granted; and
c. The balance of convenience
must favour the applicant.
RJR MacDonald Limited v. Canada (Attorney General), [1994] 1 S.C.R. 31; Toth v. Canada (Minister of Employment and Immigration) (1988) 86 N.R. 302 (F.C.A.).
[8]
This
application is made at a late stage in the immigration process, arising from a
removal officer’s refusal to defer removal, and thus, instead of the lower
standard of a “serious issue” test set out in RJR MacDonald supra, a higher
standard relating to whether his underlying application, the request for a
judicial review of the removal officer’s decision, is to be assessed. The
Court must examine whether the underlying application is likely to succeed on
its merits: Wang v. Canada (Minister of Citizenship and Immigration), 2001 FCT 148.
Serious Issue
[9]
The
applicant raised a number of issues with the removal officer.
[10]
The
applicant asserted that he remain with and provide needed to support his spouse
and stepson. The separation does not raise a serious issue as it is a normal
consequence of removal rather than the more compelling consideration required:
Wang, supra.
[11]
The
applicant says he will be detained in the United States and ultimately deported
to Pakistan. However, the removal to the United States is a consequence of the
applicant’s own choice not to prepare for that contingency. Any detention in
the United States would be transitory pending deportation to Pakistan and the
applicant’s refugee and PRRA processes found no risk to him should he be
returned to Pakistan.
[12]
The
applicant stated his stepson needed his guidance. However, the stepson had his
mother and biological father to provide any necessary support. As the stepson
is seventeen and about to enter adulthood, no serious issue arises.
[13]
The
applicant asserts a serious issue arises on his removal before the date he is
summoned to Court to address pending criminal charges. The summons is an
appearance notice issued by a peace officer. Section 50(a) of the IRPA specifies
that a removal order is stayed if a decision is made in a judicial proceeding.
The issuance of an appearance notice by a peace officer is not a judicial
proceeding and s.50 (a) is therefore not engaged.
[14]
The
applicant made a Spousal Application for Permanent Residence on September 6,
2007, approximately 20 months after his marriage and just 20 days before his
removal date. The application cannot be considered to have been made in a
timely fashion. Since the applicant may make an out-of-country spousal
application, no serious issue arises in respect of the spousal application.
Irreparable Harm
[15]
The
applicant fails on the question of irreparable harm.
[16]
There is
no irreparable harm in the fact that the applicant faces deportation to the United States. The Federal Court of Appeal
found the United
States’
institutions have a democratic system of checks and balances and, in particular,
an independent judiciary and guarantees of due process. No irreparable harm
arises on the applicant having to engage the US immigration system: Hinzman v. Canada (Minister of Citizenship and
Immigration),
2007 FCA 171 at ¶46.
[17]
As noted,
the issue of persecution in Pakistan was addressed by the Refugee Board and the
PRRA processes which both concluded the applicant is not at risk on return to Pakistan. No issue of irreparable
harm arises on this basis.
[18]
Finally,
the stepson would still have the support of his mother and biological father on
the applicant’s removal. Again the issue of irreparable harm does not arise.
Balance of Convenience
[19]
In the
circumstances of this case, the balance of convenience favours the respondent
Minister who is responsible for the compliance with the statutory requirements
of the immigration legislation.
Conclusion
[20]
For the
above reasons, the application for a stay of execution of the removal order is
dismissed.
ORDER
THIS COURT ORDERS that the motion for a stay of
execution of the removal order is dismissed.
"Leonard
S. Mandamin"
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