Docket: IMM-4305-05
Ottawa, Ontario, this 11th day of August, 2005
Present: THE HONOURABLE JUSTICE von FINCKENSTEIN
BETWEEN:
SAIRA ALI
TEHREEM ALI
Applicants
and
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
(Delivered orally and subsequently written for clarification and precision)
[1] The Applicant, Saira Ali, arrived in Canada with her daughter, Tehreem Ali, on February 5, 2001 and made a claim for refugee status, claiming that as Shia Muslims they were persecuted by a religious group called Sipah-e-Sahaba Pakistan.
[2] The refugee claim was denied on April 16, 2002 and leave to appeal was denied by the Federal Court. A Pre-Removal Risk Assessment ("PRRA") application was denied on
March 17, 2004 and while an application to seek leave to appeal was commenced, it was later abandoned by the Applicant. An application seeking humanitarian and compassionate relief ("H & C application") was denied on July 12, 2005. That decision took into account the previous PRRA decision and was also based on a separate PRRA opinion dated March 22, 2005.
[3] The Applicant has been ordered to report for deportation on August 10, 2005. She has commenced an application to seek judicial review of the negative H & C decision and is seeking a stay of removal until that judicial review is dealt with.
[4] The Applicant argued that pivotal to all immigration proceedings against her husband and herself is the question of whether charges for blasphemy are outstanding in Pakistan against her husband. While the Immigration and Refugee Board ("IRB") in both her husband's case and in the Applicant's case found that those charges were unsubstantiated, the Applicant asserts, on the basis of new evidence only obtained last week by a Canadian lawyer visiting Pakistan, that such charges can now be proven. She asserts that this is pivotal to her husband's case and by implication to her case and therefore the stay should be granted until her husband's PRRA application is decided.
[5] I cannot accede to this contention. Her husband's case is not before me. The H & C decision (including the attached PRRA opinion) underlying her application for leave to seek judicial review and this stay application makes no reference to these charges. The matter may be pivotal to the Applicant's husband's case, but it is not relevant, let alone pivotal to the matters before this Court.
[6] To succeed with her stay application, the Applicant has to meet the three conditions laid down in Toth v. Canada (M.E.I.) [1988] F.C.J. 587; that there is a serious issue under consideration, that the applicant would suffer irreparable harm if no order was granted and that the balance of convenience considering the situation of both parties, favours the granting of the order sought.
[7] She has failed to do so. Irreparable harm has not been established. The PRRA opinion accompanying the H & C decision deals with any risk to the Applicant. Even if it is established that the charges against her husband are true and outstanding, no evidence has been furnished that this would put her in danger. A family separation in itself does not amount to irreparable harm.
[8] As far as balance of convenience is concerned, the Applicant has had her situation reviewed by three different decision makers, the IRB, the PRRA officer and the H & C officer. All have found her claim not to be credible. Having been unsuccessful at all three levels, the balance of convenience now shifts in favour of the Minister who has a duty to see to the timing and effective execution of removal orders. As stated in Membreno-Garcia v. Canada (Minister of Employment and Immigration) (T.D.) [1992] 3 F.C. 306 at paragraph 18:
There is a public interest in having a system which operates in an efficient, expeditious and fair manner and which, to the greatest extent possible, does not lend itself to abusive practices.
[9] Having failed to meet two legs of the threefold conjunctive Toth test, this application cannot succeed. No stay will be granted.
"Konrad von Finckenstin"
F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4305-05
STYLE OF CAUSE: SAIRA ALI
TEHREEM ALI
and
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: August 9, 2005
REASONS FOR ORDER
AND ORDER: The Honourable Justice von Finckenstein
APPEARANCES:
| Mendel Green
|
|
FOR THE APPLICANTS
|
|
|
|
|
| Ladan Sharooz
|
|
FOR THE RESPONDENT
|
|
|
|
|
SOLICITORS OF RECORD:
| MENDEL GREEN Green & Spiegel Ottawa, Ontario
|
|
FOR THE APPLICANTS
|
|
|
|
|
| JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Ottawa, Ontario |
|
FOR THE RESPONDENT
|
|
|
|
|