Montréal, Quebec, June 19, 2006
Present: The Honourable Mr. Justice Shore
BETWEEN:
Applicant
and
AND IMMIGRATION
and
MINISTER OF PUBLIC SAFETY
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1] This is a motion to stay an order for removal to Pakistan to be enforced on June 20, 2006.
[2] This motion is incidental to an application for leave and for judicial review challenging the negative pre-removal risk assessment by the immigration officer on May 4, 2006.
FACTS
[3] The following facts emerge from the exhibits attached to the affidavit of Laurence Gagnon, filed in support of this matter, as well as the decision contemplated by the application for leave and for judicial review.
[4] The applicant, a citizen of Pakistan, stated that he arrived in Canada on January 2, 2001, from the United States.
[5] On January 4, 2001, he claimed refugee status at the inland office of Citizenship and Immigration Canada (CIC).
[6] On October 11, 2001, the Refugee Protection Division of the Immigration and Refugee Board (Board) made a negative finding in his regard, determining that he lacked credibility (see the decision, exhibit “A” to the affidavit of Laurence Gagnon).
[7] The application for leave and for judicial review filed against that decision was dismissed on April 17, 2002 (docket number IMM-5147-01).
[8] On May 4, 2006, the immigration officer made a negative finding on the Pre-Removal Risk Assessment (PRRA).
[9] The officer also made a negative finding on the exemption application on humanitarian and compassionate grounds filed by the applicant (exhibit “B” to the affidavit of Laurence Gagnon).
[10] By letter dated May 11, 2006, the CIC summoned the applicant for a meeting at their offices the following May 23, in order to give him these decisions.
[11] On May 23, 2006, at the interview, the officer responsible for the enforcement of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act), summoned the applicant to a meeting the following June 6, asking him to bring a ticket for a flight to Pakistan leaving “no later than” June 23, 2006.
[12] On June 6, 2006, the applicant came to the interview with a ticket for a flight to Pakistan, scheduled to leave on June 20, 2006.
[13] On June 14, 2006, the applicant served a motion to stay his removal from Canada scheduled for June 20, 2006.
[14] The applicant is married and is the father of two children who live in Pakistan.
ISSUES
[15] In order to assess the merits of the motion to stay, this Court must determine whether the applicant meets the requirements of the case law as set out by the Federal Court of Appeal in Toth v. Canada (Minister of Employment and Immigration), 86 N.R. 302 (F.C.A.), [1988] F.C.J. No. 587 (QL).
[16] In that matter, the Court of Appeal referred to three requirements that it imported from the injunction case law, specifically the decision of the Supreme Court of Canada in Manitoba (Attorney General) v. Metropolitan Stores, [1876] 1 S.C.R. 110. These three requirements are as follows:
(a) there is a serious issue to be tried
(b) irreparable harm
(c) and the assessment of the balance of convenience
[17] Therefore, in the absence of a statutory stay, this Court must determine whether the applicant has established that there is a serious issue to be tried in his case, that there will be irreparable harm as a result of his removal to Pakistan and an inconvenience greater than the inconvenience to the Minister as a result of not enforcing the removal and not respecting the provisions of the Act.
[18] The applicant’s affidavit filed in support of his motion to stay is laconic and does not add any fact tending to establish that there is a serious issue to be tried, or irreparable harm.
[19] In fact, the applicant’s affidavit simply states that all of the facts appearing inter alia in exhibit A are true.
ANALYSIS
(a) No serious issue to be tried
[20] Subsection 112(1) of the Act provides the following:
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112. (1) Application for protection – A person in Canada, other than a person referred to in subsection 115(1), may, in accordance with the regulations, apply to the Minister for protection if they are subject to a removal order that is in force or are named in a certificate described in subsection 77(1). |
112. (1) Demande de protection – La personne se trouvant au Canada et qui n’est pas visée au paragraphe 115(1) peut, conformément aux règlements, demander la protection au ministre si elle est visée par une mesure de renvoi ayant pris effet ou nommée au certificat visé au paragraphe 77(1). |
[21] The person claiming the protection must establish the facts submitted by him.
[22] Paragraph 113(a) of the Act limits the evidence that may be adduced in the context of a PRRA:
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113. Consideration of application – Consideration of an application for protection shall be as follows:
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113. Examen de la demande – Il est disposé de la demande comme il suit:
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(a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection; |
a) le demandeur d’asile débouté ne peut présenter que des éléments de preuve survenus depuis le rejet ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les circonstances, de s’attendre à ce qu’il les ait présentés au moment du rejet; |
[23] The officer first pointed out that the Refugee Protection Division had determined that the applicant lacked credibility.
[24] The Court read the decision of the Refugee Division, exhibit A of the affidavit of Laurence Gagnon, where the panel states, inter alia:
§ At the beginning of the hearing before the Refugee Protection Division, the applicant amended his Personal Information Form to delete two significant events, namely his involvement in two important rallies that took place in March and May 2000. In his original version, the applicant stated that he had been arrested and imprisoned following this first rally; [the respondent observed that the applicant appeared to have revived this allegation before the PRRA officer, alleging that he had been arrested in March 2000 because of his involvement in organizing public demonstrations – see page 3 of the impugned decision];
§ The applicant did not give direct answers to the questions asked;
§ The applicant contradicted himself about when his problems allegedly began;
§ The applicant contradicted himself about when he was falsely accused and threatened;
§ The applicant contradicted himself about when it was suggested that he enter politics;
§ Finally, the applicant contradicted himself about the First Information Report (FIR) that he filled out after the death of his father; specifically, the applicant contradicted himself about whether he had identified anyone for the police and also whether he talked about the threats or not.
[25] This decision by the Refugee Division was one of the factors that the immigration officer had to consider for his PRRA.
[26] On that point, the officer stated that the risks submitted before him rehashed those submitted before the Board. Namely, the false accusations filed against the applicant and the risks tied to political activities.
[27] Indeed, the immigration officer set out the evidence submitted for his review.
[28] In his memorandum, the applicant claimed that the submitted documentation was new evidence that should have been taken into consideration by the officer.
[29] Yet, it appears clearly from the dates on the different personal documents filed by the applicant that they predate the Board’s decision, dated October 2001 (see page 4 of the impugned decision).
[30] Despite that, the officer handling the matter indicated that all of these documents would be considered in his assessment.
[31] The applicant claimed that [translation] “The PRRA officer does not specify how these documents are irrelevant with regard to the applicant’s personal situation”.
[32] Countering that argument, bear in mind that, to the contrary, the officer very clearly stated the reasons why he could not assign probative value to the personal documents filed into evidence by the applicant. Therefore:
§ The applicant filed photocopies of the FIR, the arrest warrants and the documents regarding the death of his father; the officer noted that all of these documents had already been assessed by the Board and could only, at the most, corroborate a story that the Refugee Division had already found to lack credibility;
§ In fact, the Board stated that it believed that the applicant’s claim had been fabricated and did not believe that he had been involved in election campaigns or that he had been threatened by political rivals;
§ Indeed, the officer stated that the letter from the President of the Pakistan Muslim Party – Nawaz (PML(N)) was one of the applicant’s acquaintances, which made the letter biased, like the letter from counsel;
§ Also, it appeared from the letter from the President of the PML(N) that he had no personal knowledge of the alleged facts.
[33] The respondent stated that the applicant did not think it worthwhile to attach these documents to his affidavit so that this Court could review them.
[34] The PRRA officer gave many reasons in support of his decision not to assign any probative value to these documents. The PRRA officer was certainly supposed to determine their value. His decision in that respect is certainly not patently unreasonable.
[35] In Malhi v. Canada (Minister of Citizenship and Immigration ), 2004 FC 802, [2004] F.C.J. No. 993 (QL) it was stated that:
. . . Further, the IRB concluded that the applicant's allegations did not conform to the current political situation in India, as it appeared from various reliable sources of documentary evidence. This conclusion was shared by the PRRA Officer who considered recent documentary evidence. Clearly, the PRRA Officer did not base her decision on an erroneous finding of fact that was made in a perverse or capricious manner or without regard to the material before her. Overall, the decision is not patently unreasonable.
. . . It is well-established that it is within the purview of the PRRA Officer, as a decision-maker, to determine the credibility to be given to the applicant's testimony as well as to the evidence produced in support of the claim (Singh v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1329 at paragraph 3 (T.D.)(QL)).
As for the new evidence filed on May 29, 2003, an affidavit from the Sarpanch of Nano Malhian village, where the Sarpanch confirms the facts alleged by the applicant. The PRRA Officer finds that, although very informative, this evidence does not in and of itself suffice to reverse the outcome of the applicant's claim in light of both the documentary evidence on file and the explanations provided by the applicant. The PRRA Officer gave little probative value to this new evidence. Considering that the assessment of the evidence is within the purview of the PRRA officer who has the discretion to rely on the evidence that she deems appropriate, the intervention of this Court is not justified. . .
[36] The immigration officer’s assessment did not stop there. The officer also consulted the more general documentary evidence. In light of this evidence, the officer stated his findings:
§ The PML(N) and the PPP are now both part of a political coalition and the evidence does not report further violence between the members of these political parties; the officer was not satisfied that the applicant had established that there was a personal risk in that respect, even more so because the applicant did not have the profile of an important politician within his party;
§ With regard to religious practice, the applicant did not file any evidence establishing that there was a personal risk and his personal history does not support the existence of such a fear; the applicant is Islamic, the most widespread religion in Pakistan and does not refer to a more specific membership in a religious minority;
§ The applicant did not file any evidence indicating that he had spoken out against the government in 1999, or that he had organized a demonstration, for which he had allegedly been arrested in March 2000.
[37] In short, the officer could not have determined, on the basis of the evidence filed, that the applicant would be personally at risk and that decision by the officer was reasonable in light of the words of Mr. Justice Paul Rouleau in Ahmad v. Canada (Minister of Citizenship and Immigration), 2004 FC 808, [2004] F.C.J. No. 995 (QL):
. . . A claim based on section 97 requires the Board to apply a different criterion pertaining to the issue of whether the applicant's removal may or may not expose him personally to the risks and dangers referred to in paragraphs 97(1)(a) and (b) of the Act. However, this criterion must be assessed in light of the personal characteristics of the applicant. Indeed, as Blanchard J. noted in Bouaouni, supra:
para. 41 [T]he wording of paragraph 97(1)(a) of the Act ... refers to persons, "... whose removal ... would subject them personally ...". There may well be instances where a refugee claimant, whose identity is not disputed, is found to be not credible with respect to his subjective fear of persecution, but the country conditions are such that the claimant's particular circumstances, make him/her a person in need of protection.
Thus the assessment of the applicant's fear must be made in concreto, and not from an abstract and general perspective. The fact that the documentary evidence illustrates unequivocally the systematic and generalized violation of human rights in Pakistan is simply not sufficient to establish the specific and individualized fear of persecution of the applicant in particular. . . .
[38] The assessment of the evidence carried out by the panel is a question of fact. In Tharumarasah v. Canada (Minister of Citizenship and Immigration ), 2004 FC 211, [2004] F.C.J. No. 258 (QL) paragraph 6, the Court described in the following terms the appropriate standard of review for tribunal decisions, which command significant deference:
Decisions of PRRA officers are to be given significant deference. Where there is nothing unreasonable in the PRRA decision, there will be no serious issue. In this case, the PRRA officer clearly considered Ms. Tharumarasan's submissions and supporting documentary evidence with respect to ongoing human rights abuses in Sri Lanka. What Ms. Tharumarasah is asking the Court to do is to re-weigh the evidence that was before the PRRA officer. While Ms. Tharumarasah may not agree with the PRRA decision, she has not demonstrated that it was arguably either unreasonable or perverse, and accordingly no serious issue arises here.
(b) Lack of irreparable harm
[39] The respondent points out that irreparable harm was defined by the Court in Kerrutt v. Canada (Minister of Employment and Immigration), (1992) 53 F.T.R. 93, [1992] F.C.J. No. 237 (QL) as the removal of a person to a country where their life or safety would be in jeopardy.
[40] It is not enough that an applicant alleges harm in an affidavit, which is not even the case here. When that harm is a fear of being mistreated if removed to one’s country, it is still necessary to adduce evidence establishing the objective basis of that fear: Gogna v. Canada (Minister of Employment and Immigration), (1993) 68 F.T.R. 140, [1993] F.C.J. No. 817 (QL).
[41] A connection must also be established between the documentary evidence filed and the applicant’s personal situation (Ly v. Canada (Minister of Citizenship and Immigration ), IMM-1564-98, May 4, 1998 (Richard J.); see also: Iyathurai v. Canada (Minister of Citizenship and Immigration), IMM-2593-99, May 26, 1999 (McKeown J.))
[42] This Court has also stated on many occasions that the alleged harm cannot be a matter of pure speculation, as in Ward v. Canada (Minister of Citizenship and Immigration), IMM-15-97, January 7, 1997 (Joyal J.).
[43] In appreciating irreparable harm, this Court has often decided that decisions by the Refugee Protection Division could be taken into account as well as the fact that an applicant lacks credibility (Akyol v. Canada (Minister of Citizenship and Immigration), 2003 FC 931, [2003] F.C.J. No. 1182 (QL).
[44] In this case, the applicant had several opportunities to submit his arguments to the effect that his removal to Pakistan would jeopardize his life and safety.
[45] The applicant made these arguments before the Board’s Refugee Protection Division, and it dismissed his arguments, on the basis that they lacked credibility.
[46] Following a negative finding by this panel, the applicant made his arguments against that decision before the Federal Court, but his application was dismissed (see docket number IMM-5147-01 of this Court).
[47] Very recently, in order to obtain the final green light before removing the applicant, CIC consulted an immigration officer with expertise in this area.
[48] The officer consulted determined that the applicant had not established that there was a personalized risk.
[49] Therefore, at each stage, it was noted that there was no removal risk for the applicant.
[50] In light of the above, the Court determines that the existence of an irreparable harm has not been established.
(c) The balance of convenience favours the Minister
[51] Subsection 48(2) of the Act obliges the respondent to enforce the removal order as soon as is reasonable practicable.
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48. (1) A removal order is enforceable if it has come into force and is not stayed.
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48. (1) La mesure de renvoi est exécutoire depuis sa prise d’effet dès lors qu’elle ne fait pas l’objet d’un sursis.
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(2) If a removal order is enforceable, the foreign national against whom it was made must leave Canada immediately and it must be enforced as soon as is reasonably practicable. |
(2) L’étranger visé par la mesure de renvoi exécutoire doit quitter immédiatement le territoire du Canada, la mesure devant être appliquée dès que les circonstances le permettent. |
[52] Many decisions by this Court have held that when assessing the balance of convenience, the notion of public interest must be taken into account:
On the issue of balance of convenience, the Court should consider the Public Interest as it relates to the personal harm that could come about in this particular case. Referring to Sopinka J. in Chiarelli v. Minister of Employment and Immigration (1992), 135 N.R. 161, though dealing with an extradition case he wrote at page 182:
The most fundamental principle of immigration law is that noncitizens do not have an unqualified right to enter or remain in the country. At common law an alien has no right to enter or remain in the country.
(Blum v. Canada (Minister of Citizenship and Immigration ), [1994] F.C.J. No. 1990 (QL)).
[53] In this case, the balance of convenience favours the public interest to have the immigration process prescribed by law follow its course.
CONCLUSION
[54] Considering all of the foregoing, the applicant does not satisfy the case law requirements for obtaining a judicial stay. The motion is dismissed.
JUDGMENT
THE COURT ORDERS THAT the motion to stay the enforcement of a removal order be dismissed.
Judge
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2808-06
STYLE OF CAUSE: AZHAR BASHIR v.
MINISTER OF CITIZENSHIP
AND IMMIGRATION
and
MINISTER OF PUBLIC SAFETY
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: June 19, 2006
REASONS FOR JUDGMENT: MR. JUSTICE SHORE
DATE OF REASONS: June 19, 2006
APPEARANCES:
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Olivier Chi Nouako
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FOR THE APPLICANT |
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Annie Van Der Meerschen
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FOR THE RESPONDENTS |
SOLICITORS OF RECORD:
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OLIVIER CHI NOUAKO Montréal, Quebec
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FOR THE APPLICANT |
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JOHN H. SIMS, Q.C. Deputy Attorney General of Canada
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FOR THE RESPONDENTS |