Date: 20040414
Docket: IMM-3267-04
Citation: 2004 FC 564
BETWEEN:
NAJAM HASSAN
Applicant
and
THE SOLICITOR GENERAL OF CANADA
Respondent
[1] These are the reasons for the Court's Order dismissing the application to stay the removal of the Applicant to the United States, scheduled for 9:00 a.m. on Wednesday, April 14, 2004.
[2] This stay arises as a result of a negative Pre-Removal Risk Assessment ("PRRA") decision rendered in mid-February but not communicated to the Applicant for five weeks. That decision was provided to the Applicant at the time of receipt of the Removal Order.
[3] This Court has on several occasions commented negatively on this administrative practice whereby the government keeps a person in the dark about their immigration status while officials deal with setting up the removal. Except where secrecy is necessary, this practice borders on the abusive and may, in other circumstances, give reason to stay removals and overturn other decisions.
[4] I do note that the Applicant took from the end of March until just before the long Easter weekend to file its stay application, such that this matter could only be heard on the afternoon preceding the day of the removal.
[5] The serious issue alleged is the failure (or inability) of the PRRA officer to consider evidence of changed circumstances in Pakistan. That evidence consisted of some newspaper articles indicating three acts of violence against Shias and, therefore, arguably the failure to provide adequate state protection.
[6] The Applicant asks the Court to effectively re-weigh the evidence before the PRRA officer and conclude that these three incidents are sufficient to overturn a finding of state protection. For purposes of a stay application, this Court will not make such a finding.
[7] The Applicant says that the delay in communicating the PRRA officer's decision is itself a serious issue. Not every such delay would be sufficient to constitute a serious issue.
[8] Even assuming that a serious issue had been raised (an issue potentially to be decided on a leave application), the Applicant has not made out that he would suffer irreparable harm.
[9] The Applicant says that upon his return to Pakistan, he fears for his safety. He says this on the basis of his profile in his religious community. That very claim of such a profile was rejected by the Immigration Refugee Board (the "Board") and leave of the Board's decision was denied. That issue is effectively covered by issue estoppel.
[10] Furthermore, the claim is, at best, speculative even if one accepts that removal to the United States (of which the Applicant does not complain) leads to removal to Pakistan.
[11] The Applicant claims harm arising from the filing of his Humanitarian and Compassionate application. He claims that his ties to the Canadian community will be severed.
[12] The Applicant ignores the fact that such ties resulted from his being in Canada without proper status. He now seeks to rely on the very mischief he has created as grounds of irreparable harm. His claim, to use the vernacular example, is tantamount to the person who shoots his parents and then claims that he cannot be punished because he is now an orphan.
[13] The Applicant is suffering nothing more than the natural consequences which flow from his lack of immigration status. (See Calderson v. Canada ( Minister of Citizenship and Immigration) (1995) 92 F.T.R. 107 Simpson J. at 111.)
[14] I need not consider the balance of convenience.
[15] For these reasons, the application for a stay of the removal order was dismissed.
"Michael L. Phelan"
JUDGE
Ottawa, Ontario
April 14, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3267-04
STYLE OF CAUSE: NAJAM HASSAN v. MCI
PLACE OF HEARING: OTTAWA AND TORONTO, ONTARIO
VIA TELECONFERENCE CALL
DATE OF HEARING: TUESDAY, APRIL 13, 2004
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PHELAN
DATED: WEDNESDAY, APRIL 14, 2004
APPEARANCES:
MS. LANI GOZLAN FOR APPLICANT
MS. MIELKA VISNIC FOR RESPONDENT
SOLICITORS OF RECORD:
MAX BERGER & ASSOCIATES FOR APPLICANT
TORONTO, ONTARIO
MR. MORRIS ROSENBERG FOR RESPONDENT
DEPUTY ATTORNEY OF CANADA