Date:
20130821
Docket:
IMM-5501-13
Citation:
2013 FC 890
Ottawa, Ontario,
August 21, 2013
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
|
|
KHURSHID BEGUM AWAN
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
ORDER AND ORDER
[1]
Inherent
values of life, human worth and dignity are fully reflected in Canada’s
legislation. It is, therefore, important that a mockery, not be made of the
legal system, its legal process (by an abuse of such process) and that of the
immigration legislative framework.
[2]
This
matter cannot possibly be understood unless the chronology of the voluminous
paper trail of files emanating from both respective parties is comprehensively
comprehended.
[3]
Although
the computer age often relies on twitter communiqués or sensational headlines to
transmit information, this matter requires a most comprehensive and
considerable amount of background reading and analysis, not suitable for quick
fixes of a sensational variety.
[4]
Without
reading the full background to this matter and the multiple files themselves,
the essence is totally missed and, thus, susceptible to a major
miscomprehension. From the outset of the case of the Applicant, a complete lack
of credibility is immediately apparent upon reading the decision of the
Immigration and Refugee Board, Refugee Determination Section, dated November 2,
2012, in files MB103153 and MB103155. From the outset to the present, if the
full record is simply read, a clear picture emerges that is most different than
that brought forward by the Applicant. In Hussain v Canada (Minister of
Citizenship and Immigration), [2000] FCJ No 751 (QL/Lexis), Justice Marc Nadon stated:
[12]
… 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”…
[5]
The
present matter before the Court is that of a motion, submitted to the Federal
Court only yesterday evening, August 20, 2013, in regard to a removal order in
respect of the Applicant scheduled for today.
[6]
An
extensive reading of the file draws note of the following: two respective
judges of this Court, Justice Simon Noël and Justice Jocelyne Gagné, have only
most recently rendered two respective judgments in this matter. Both draw upon
a full recognition, acknowledgment and understanding of the intricacies of the
matter subsequent to interim stays having been granted to ensure that the
matter will have been fully comprehended. (The two orders of both judges are
provided as annexed.)
[7]
Exhibit
B1 demonstrates that as of July 22, 2013, Dr. Maxime Labelle at the Montreal
General Hospital wrote in respect of the Applicant that “the patient is safe to
travel by any mode of transportation and is safe to resume all baseline
activities of daily living”.
[8]
No
new evidence of substance has arisen since that time to warrant a change in
situation. As a matter of fact, no doctor had submitted an affidavit, as was
indicated by Justice Noël for the purposes that would have been previously
required for substantiation.
[9]
The
history of the file clearly demonstrates that, presently, hospitalization
occurs an hour before hearings are to take place; and, that in the past, reoccurrent
hospitalization, also, was apparent hours before or within days of hearings to
be conducted.
[10]
The
present matter, in its saga, before the Court is, yet, of another motion to
stay the removal of the Applicant.
[11]
It
is important to note that medical attention was offered, will be provided and
present on the flight on which the Applicant is to be returned: an accompanying
nurse, wheelchair access and a recognition that the country to which the
Applicant is returning does have the needed medical attention in such regard.
[12]
The
matter in respect of the present third motion for a stay of removal (in
addition to the interim stay orders granted on motions previously) will not be
heard, yet, again, to ensure that a mockery of the immigration system does not
ensue; thus, an abuse of process is not perpetuated, due to the lack of “clean
hands” by the Applicant as described by the jurisprudence in that regard (El
Ouardi v Canada (Solicitor General), 2005 FCJ No. 189 (QL/Lexis) of Justice
Marshall Rothstein; and, also, Mjia v Canada (Minister of Citizenship and
Immigration), 2012 FC 1256).
[13]
As
two judges of this Court have rendered decisions, a continuation of the process,
dependent on the same basic premised evidence, would simply constitute novelty,
not betterment, without any greater substantiation to the evidence. On such
evidence to render a different decision, all that would be accomplished, would
be, in effect, a negation and a setting aside of the decisions of judges, when
nothing will have substantially changed in regard to the state in which the
Applicant presently finds herself. It is recognized that an affidavit from a
medical doctor as specified by Justice Noël had not been forthcoming prior to
even this present moment as the decision was being written.
[14]
It
is recalled that a stay of execution, an injunction, as requested, is an
extraordinary measure, or remedy in law. It calls for applicants to come to
Court with “clean hands”, meaning that credibility and respect of the law of
Canada be abided by rather than flaunted; that is not the case in this matter;
a careful reading of the Court record fully demonstrates itself as such.
[15]
Therefore,
for all of the above reasons, the motion for a stay of removal will not be
entertained.
(N.B. This decision was
just about to be rendered in the French language by the undersigned judge;
however, as noted in the present Court record, the counsel for the Applicants
(also, the Applicant’s husband, who, previously had been returned to their
country of origin), prior to the present motion, pleaded in the English
language before the Court; and, only in regard to the present motion has he
pleaded in the French language. It is also noted that the Applicant has
knowledge of English.
This decision, as
self-evident, is drafted in the English language and will become available in
its French translation as soon as possible. It is reiterated that the
undersigned judge, who, when beginning to draft this decision, drafted in the
French language, only to change languages to ensure that the file, as set out
in its original language, would also ensure a judicial response in the same
language that the Applicant’s counsel conducted the matter from the outset,
together with that of the bulk of the documentation submitted.
Changing languages in
pleadings on the same matter by the same counsel, does not necessarily change
judges which, is sometimes thought, to enable receiving a change in judges.
The previous recent
decisions of the two fully bilingual judges, Justice Noël and Justice Gagné, who
both speak and render decisions in both languages, were, nevertheless, rendered
in the English language, also, to accommodate counsel of the Applicant and the
Applicant. This is of significance as the decision would have otherwise been
rendered in the French language.)
ORDER
THIS
COURT ORDERS that the motion for a stay of removal will
not be entertained.
“Michel M.J. Shore”
ANNEX “A”
Date: 20130403
Docket: IMM-2369-13
Ottawa,
Ontario, April 3, 2013
PRESENT: The
Honourable Madam Justice Gagné
BETWEEN:
|
|
KHURSHID BEGUM AWAN
MUHAMMAD KHALIL AWAN
|
|
|
|
Applicants
|
|
and
|
|
|
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
|
|
|
|
Respondent
|
ORDER
UPON
motion on behalf of
the applicants presented this day for a stay of execution of their removal
order, also scheduled this day, from Canada to Pakistan;
AND
UPON considering the affidavit and written submissions by the applicants’
and by the respondent’s counsel;
AND
UPON hearing the parties’ oral submissions by way of a teleconference;
AND
UPON considering that the present motion is accessory to an application for
leave and judicial review (ALJR) of a negative decision from the Canadian
Boarder Services Agency (Removal officer), dated April 2, 2013, refusing the
applicants motion for an administrative stay of their removal;
AND
UPON considering
the tri-partite test in Toth v Canada (Minister of Employment and
Immigration) (1988), 86 NR 302 (FCA), according to which it must be
demonstrated that:
THIS COURT ORDERS that the applicants motion for a stay
of their removal order be dismissed.
"Jocelyne Gagné"
ANNEX “B”
Date: 20130627
Docket: IMM-2750-13
Montréal,
Quebec, June 27, 2013
PRESENT: The
Honourable Mr. Justice Simon Noël
BETWEEN:
|
|
KHURSHID BEGUM AWAN
MUHAMMAD KHALIL AWAN
|
|
|
|
Applicants
|
|
and
|
|
|
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
|
|
|
|
Respondent
|
ORDER
HAVING
READ the most recent documentation filed by both parties, which included an
affidavit of Rosalind Wong, “an activist with solidarity across borders”, and
the affidavit of Dr. Bruno Benzaquen, cardiologist, a letter signed by
counsel for the Applicants dated June 27, 2013 and a further motion record
of the Respondent;
UPON
having reviewed the evidence filed initially by both parties which includes the
medical evidence of Dr. Thériault, Dr. Khadir, a medical resident, Dr. Costi,
etc., as well as the medical records file;
CONSIDERING
that Gagné J. of this Court dismissed an earlier motion to stay based on almost
the same arguments by order dated April 3, 2013, and that this Court initially
made it clear that it would deal only with “faits nouveaux” for this second
stay motion;
CONSIDERING
that this is the fourth hearing dealing with a motion for a stay of removal of
the Applicants, where interim stays were granted but only because of medical
reasons concerning the wife Applicant;
CONSIDERING
that the husband Applicant, although having been requested to show up for his
departure to Pakistan on April 17, 2013, did not show up and as a result
of that, costs in favour of the Respondent have still not been paid;
CONSIDERING
that this hearing deals solely with the wife Applicant’s health situation in
light of an eventual return to Pakistan as a result of a deportation order;
CONSIDERING
the prior medical evidence (including the one of Dr. Costi which does not
recommend air travel) and the most recent one of Dr. Benzaquen which concludes
after having reviewed a number of medical tests that the Applicant has a health
situation that does not preclude air travel but that the use of a wheelchair
would aid in her transport;
CONSIDERING
the medical evidence of Dr. Thériault which indicates that the wife Applicant
is fit to fly to Pakistan and that there are in that country medical services
to deal with her health issues and the review of the medical records of the
Applicant which the doctor dealt with in detail;
CONSIDERING
that Dr. Thériault recommends that the Applicant be accompanied by a nurse
during the traveling time from Canada to Pakistan;
CONSIDERING
the medical evidence in totality and concluding that the assessment of it
favours by preponderance that the health situation of the wife Applicant
permits air travel with wheelchair access and the presence of a nurse while
traveling from Canada to Pakistan;
CONSIDERING
that this Court has been concerned with the health of the wife Applicant since
mid-April 2013 while traveling by air but that as of today there is substantial
medical evidence (which includes examinations by cardiologists, although
contradictory concerning her ability to travel) that shows that she is fit to
fly;
CONSIDERING
the tripartite test (Toth v Canada (Minister of Employment and
Immigration) (1988), 86 NR 302 (FCA) and RJR-MacDonald Inc. v Canada
(Attorney General), [1994] 1 S.C.R. 311) that there is a serious issue to be
tried, that the Applicant will suffer irreparable harm by reason of her
deportation to Pakistan and that the balance of convenience is in her favour;
CONSIDERING
my favourable comments concerning the decision of the enforcement officer
in the order of April 17, 2013 at page 4 and the fact that because of the
new medical evidence of the Respondent there is no irreparable harm and that
the balance of convenience favours the Respondent;
CONSIDERING
that the substantial medical evidence presented does not show there will be
irreparable damage to the wife Applicant and that the balance of convenience
favours the Respondent;
CONSIDERING
the request for further costs by the Respondent and the determination made
concerning the wife Applicant’s ability to travel by air, no costs will be
awarded;
THIS
COURT ORDERS that:
1. The granting of the
interim stay motion is cancelled and the motion for a stay of deportation is
dismissed.
2. The Applicant, when
travelling from Canada to Pakistan, will have wheelchair access and will be
accompanied by a qualified nurse.
3. No costs to be awarded
in this matter.
“Simon Noël”
Email this Content