Date: 20040521
Docket: IMM-4410-04
Citation: 2004 FC 748
Toronto, Ontario, May 21st, 2004
Present: The Honourable Mr. Justice O'Keefe
BETWEEN:
MOHAMMAD JAHANGIR IQBAL
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is a motion by the applicant for an order staying his removal from Canada to the U.S.A. which removal is scheduled for May 25, 2004.
[2] The applicant is a citizen of Pakistan who came to Canada in 1999.
[3] The applicant made a Convention Refugee claim which was denied.
[4] The Pre-Removal Risk Assessment ("PRRA") application made by the applicant was denied and that decision and reasons for the decision were served on the applicant on May 4, 2004.
[5] The applicant has filed an application for leave for Judicial Review and Judicial Review of the decision of the Immigration and Refugee Protection, Enforcement Officer South Enforcement Unit, Canada Border Services Agency to schedule the removal from Canada to the United States on May 25, 2004 at 9:00 a.m. of the applicant.
[6] The applicant's application for leave for Judicial Review of his negative Convention Refugee decision was denied.
[7] The applicant is afraid to be returned to Pakistan where as a Shia Muslim he is afraid of being attacked by Sunni terrorists of the Sipa-e-Sahaba and also by the Shia Fiqa Jaffaria who were outraged by his abandoning his role of personal assistant and protector of the Shia Alama Gulfam Hussain Hashmi.
[8] The applicant is employed as an upholsterer.
Issue
[9] Should a stay of the applicant's removal be granted?
Analysis and Decision
[10] In order to obtain a stay, the applicant must satisfy the requirements set out in Toth v. Canada (Minister of Employment and Immigration) (1998), 86 N.R. 302 (F.C.A.), [1988] F.C.J. No. 587 (QL) (C.A.) at page 305:
This Court, as well as other appellate courts have adopted the test for an interim injunction enunciated by the House of Lords in American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 . . . . . As stated by Kerans J.A. in theBlack case supra:
The tri-partite test of Cyanamid requires, for the granting of such an order, that the applicant demonstrate, firstly, that he has raised a serious issue to be tried; secondly, that he would suffer irreparable harm if no order was granted; and thirdly that the balance of convenience considering the total situation of both parties favors the order.
The applicant must meet all 3 branches of the tri-partite test.
Serious Issue
[11] The applicant submits that a serious issue is raised in that he did not receive the officer's written reasons for his PRRA decision. In order to put this forward as a serious issue it must be shown that the applicant did not receive the PRRA officer's decision or reasons. The respondent filed the affidavit of Lisa Amadio, a removals officer, which stated that she did serve the applicant with a copy of his PRRA results letter, and a copy of the PRRA officer's reasons on May 4, 2004. The date of service was substantiated by the Notice of Service which was an exhibit to the removals officer's affidavit. The applicant did not file any affidavit evidence to show that he was not served with the documents. Based on the evidence before me, I am satisfied that the applicant did receive the decision and the PRRA officer's reasons on May 4, 2004, therefore the applicant cannot raise as a serious issue the fact that he did not receive the PRRA officer's reasons for the officer's decision.
[12] The applicant stated that the application could be granted on Humanitarian and Compassionate grounds. I am not satisfied, based on the evidence that is before me, that this raises a serious issue to be tried.
[13] I therefore find that the applicant has not raised a serious issue to be tried.
[14] The applicant must meet all three parts of the tri-partite test in order to obtain a stay. Because of my finding on serious issue to be tried I need not deal with irreparable harm or balance of convenience.
[15] The applicant's motion for a stay of his removal is dismissed.
ORDER
THIS COURT ORDERS that:
1. The applicant's motion for an order staying his removal from Canada is dismissed.
"John A. O'Keefe"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-4410-04
STYLE OF CAUSE: MOHAMMAD JAHANGIR IQBAL
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MAY 21, 2004
REASONS FOR ORDER
AND ORDER BY: O'KEEFE J.
APPEARANCES BY:
Mr. Douglas Barker
FOR THE APPLICANT
Ms. Mary Matthews
FOR THE RESPONDENT
SOLICITORS OF RECORD:
RAYMOND & HONSBERGER
Barristers and Solicitors
Toronto, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR THE RESPONDENT
FEDERAL COURT
Date: 20040521
Docket: IMM-4410-04
BETWEEN:
MOHAMMAD JAHANGIR IQBAL
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER FOR ORDER