Date: 19990217
Docket: IMM-5694-98
BETWEEN:
ZOLMAY ZOLFIQAR
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
AMENDED REASONS FOR ORDER AND ORDER
(Pursuant to Rule 397(2) of the Federal Court Rules, 1998)
BLAIS J.:
[1] This is a motion by the applicant for a stay of the deportation order issued against the applicant such order to be executed on November 14, 1998.
ISSUE
[2] Has the applicant met the tri-partite test established by the Supreme Court of Canada in RJR - MacDonald Inc. v. Canada (A-G) [1994] 1 S.C.R. 311 at p. 334, for warranting a stay of his removal?
a - a serious issue;
b - proof of irreparable harm;
c - the balance of convenience favouring the applicant.
a - Serious Issue
[3] The applicant suggests that the jurisprudence of this Court clearly states that with respect to the question of serious issue the Courts have concluded that in order to obtain a stay it is only necessary to show that the application before the Court is not frivolous and vexatious.
[4] There is no doubt that removal officers do have a discretion to defer removal and that they have exercised that discretion in circumstances like that of the applicant.
[5] The applicant's counsel has also referred to Saini v. M.C.I., IMM-1712-97, F.C.T.D., June 29, 1998, decision by Judge Gibson. I read, carefully, comments by Gibson J. and I understand that his conclusion was that the removal officer had failed to consider whether or not to exercise his or her discretion under section 48 of the Immigration Act and that "constituted a reviewable error in the nature of a failure or refusal to exercise jurisdiction".
[6] The applicant submits that, as Justice Gibson states in the Saini case, the officer failed to properly exercise her discretion by refusing to even consider the evidence as to what risk the applicant might suffer, if removed to Afghanistan.
[7] For the present purposes, I am prepared to assume without deciding that the applicant has raised a serious question to be decided.
b - Irreparable Harm
[8] The applicant's counsel has filed different documents referring to the situation in Afghanistan and tried to demonstrate that the applicant would suffer irreparable harm by being removed to Afghanistan.
[9] On the other hand, the respondent's counsel submitted that the applicant's alleged fear of irreparable harm is speculative and not credible. She also mentioned that "there is no persuasive evidence that the Afghan government seeks to harm the applicant".
[10] I have also read the documents that were filed and submitted to the removal officer. Reading the documents shows that Afghanistan continues to experience civil war and political instability.
[11] Even though the applicant is of the same religious belief as the Taliban, the applicant's counsel contends that the applicant will be at risk as soon as he lands in Kabul as he is supposed to do, and there is a risk for his life; he could be tortured or suffer other problems based on reports that members of minorities like Tajik and Hazaras are victimized just because they are members of those minorities.
[12] I disagree with this contention, and even though the evidence that was filed has demonstrated that there are problems in Afghanistan, I am not convinced that there is evidence that Taliban or the Afghan government seeks to harm the applicant.
[13] The two parties have discussed the application of sections 7 and 12 of the Charter of Rights and Freedoms. In the Kindler case (Kindler v. Canada [1991] 2 S.C.R. 779 (S.C.C.)) the Court says:
| The minister's decision to extradite without seeking death penalty assurances from the U.S. did not infringe s.7 of the Charter. The reasons for extradition were compelling and the procedural guarantees in the reciprocating state high. The sole fact that at the end of the process, the appellant could face the death penalty was insufficient in the context of the extradition system of this country to render the decision unconstitutional. The courts should not lightly interfere with executive decisions on extradition matters. |
[14] The applicant's counsel referred to the case of Turbo Resources Ltd. v. Petro Canada Inc. [1989] 2 F.C. 451, [1989] F.D.J. No. 14, Court File No. A-163-88 F.C.A., January 18, 1989, and also the case of North American Gateway Inc. v. Canada (Canadian Radio Television and Telecommunication Commission) [1997] F.C.J. No. 628 Court File No. 97-A-47, Federal Court of Appeal, May 26, 1997 by Justice MacDonald.
[15] The respondent's counsel quoted the Supreme Court of Canada in R. v. Smith [1987] 1 S.C.R. 1,045 p. 1072.
| The criterion which must be applied in order to determine whether a punishment is cruel and unusual within the meaning of s. 12 of the Charter is, to use the words of Laskin C.J. in Miller and Cockriell, supra, at p. 688 "whether the punishment prescribed is so excessive as to outrage standards of decency'. In other words, though the state may impose punishment, the effect of that punishment must not be grossly disproportionate to what would have been appropriate. |
[16] The applicant's counsel has also referred to the Convention Against Torture (CAT) [1987] Can. T.S. No. 36; on this particular point, the respondent's counsel was accurate when she mentioned that the applicant had not demonstrated that the Minister decided to return the applicant to a state where there are substantial grounds for believing that he would be in danger of being subjected to torture.
[17] The applicant has not convinced the Court that, without a stay, he will suffer irreparable harm by being removed to Afghanistan.
c - Balance of Convenience
[18] The applicant has failed to meet the third aspect of the test, that is the balance of convenience. The public interest is to be taken into account in consideration of the balance of convenience, and I believe that the balance of convenience favours the Minister and not the applicant.
[19] For the above reasons, the applicant's motion is denied.
Pierre Blais
Judge
OTTAWA, ONTARIO
February 17, 1999