IMM-4899-06
BETWEEN:
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS and
AND IMMIGRATION
REASONS FOR ORDER
[1] Mr. Chibani is scheduled to be removed from Canada to his native Algeria on 10 October. He seeks a stay of that removal pending the final outcome of two applications for leave and for judicial review presently before this Court. In Court Docket No. IMM-2474-06, he seeks a review of the Minister’s decision refusing him the privilege of applying for permanent resident status from within Canada. Although section 11 of the Immigration and Refugee Protection Act (IRPA) requires a foreign national to apply for an appropriate visa before entering Canada, the Minister may, under section 25 of the IRPA, examine the circumstances and exempt an applicant from any applicable criteria on humanitarian and compassionate grounds (H&C).
[2] The other decision at issue arises from Mr. Chibani’s pre-removal risk assessment (PRRA). Although he was found some years ago not to be a refugee within the meaning of the United Nations Convention Relating to the Status of Refugees, he was entitled to and did ask for an up-to-date assessment in accordance with sections 112 and following of the IRPA. The Minister found that he would not be at risk if he were returned to his homeland.
[3] The timing of the two decisions is relevant. The negative H&C decision was handed down on 11 April 2006 and the negative PRRA decision on 25 July 2006. In brief, a PRRA and an H&C differ, although there can be some overlap. A PRRA is an assessment of events occurring after an application for refugee status has been dismissed (which in Mr. Chibani’s case goes back to 1996). Its purpose is to determine if a person would now be at risk if returned. The H&C is more a balancing of the contacts the applicant has with Canada and with his homeland, but it also takes into account, at least to some extent, risks an applicant might face if returned.
THE TEST TO BE APPLIED
[4] It is well established that a stay, like an interlocutory injunction, is an extraordinary remedy and should only be granted if there is a serious issue in the underlying application, or in this case applications, irreparable harm if the stay should not be granted and a balance of convenience which favours the applicant. All three requirements must be met. (Toth v. Minister of Employment and Immigration (1988), 86 N.R. 302 and RJR-MacDonald v. Canada (Attorney General), [1994] 1 S.C.R. 311).
[5] I shall analyze both decisions in the light of these three requirements, one requirement after the other.
SERIOUS ISSUE
[6] As regards the H&C application, Mr. Chibani points out the application had been outstanding for some three years when he received a letter in the mail requiring him to update his file within fifteen days. He wrote back on the last day with some information, but said he was unable to provide the rest due to his medical condition, upon which he did not elaborate. In reply he was given a further very short delay, which he did not meet.
[7] Mr. Chibani claims it was grossly unfair to give him such a short delay to report on his personal life over a three-year period. Had he had more time, he would have been able to produce a letter from a psychologist as to his state of mental health (a rather vague letter to that effect appears in the court file), would have been able to give better particulars of his benevolent work (he never seems to have been employed), and would have been able to establish that his situation in Algeria would be untenable because he has converted from Islam to Christianity.
[8] Assuming, but certainly not deciding, that Mr. Chibani has raised a reasonably arguable point as regards lack of procedural fairness, I turn to the serious issue in the PRRA decision.
[9] In the PRRA, Mr. Chibani raises two significant points. One is that the officer did not believe that while in Canada he converted from Islam to Christianity. The second is that if credibility was in issue, the officer should have called him for a face to face interview. It is not necessary to decide whether these are serious issues in the light of my decision with respect to irreparable harm and balance of convenience.
IRREPARABLE HARM
[10] Mr. Chibani has not suffered irreparable harm even if he should have been given more time to make representations on his H&C application. No effort was made to remove him before the PRRA decision was handed down, and that decision contained a very detailed analysis of religion in Algeria.
[11] In support of his conversion, he proffered a letter from a parish priest, and claims that he always carries the Bible with him. The officer did not give much weight to the letter from the priest because although it says that Mr. Chibani attends mass, it does not say he converted. In fact, the evidence is clear that Mr. Chibani has not yet been baptized. He offered no evidence he has been taking any training in the tenets of the Catholic faith. However, in this case, it is not necessary to enter into an analysis of religious standing or how Mr. Chibani might be viewed in Algeria if he called himself a Christian and walked around with a Bible in hand.
[12] There was no need for an interview because Mr. Chibani was not found outright non-credible. The officer went on to examine the situation of Christians in Algeria.
[13] Although there is a recent law directed against those who attempt to convert Muslins to other faiths, the Roman Catholic Church is recognized in fact and in law, and has even been permitted to broadcast on state radio. Although it was noted that there is some social and religious stigma to converting from Islam, a conversion as such is not illegal. There is no reason to disturb the finding that there would be no serious risk of persecution were he to return to Algeria.
BALANCE OF CONVENIENCE
[14] Mr. Chibani has had a long history in Canada. He arrived here in the late 1980s through an agricultural program, and then went clandestine. He only resurfaced and came to the authorities’ attention some years later when he was charged with criminally assaulting his wife, a charge on which he was convicted. He only claimed refugee status in 1996.
[15] His refugee claim was rejected and an application for leave and for judicial review was dismissed. There is also evidence, although Mr. Chibani claims there was confusion on his part, that he twice failed to present himself to the authorities in 2002. Because of his criminal conviction, he is not entitled to take part in a special program created that same year by the Quebec and Canadian governments to allow Algerian nationals to claim permanent residence from within Canada. He has not once filed an income tax return despite his twenty years here.
[16] The Minister has the obligation to enforce the Act, and there are no equities which mitigate against him in this case.
[17] For these reasons, both motions for stay shall be dismissed.
“Sean Harrington”
Ottawa, Ontario
October 2, 2006
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2474-06
STYLE OF CAUSE: Mohamed Mehdi Chibani v. The Minister of Public Safety and Emergency Preparedness and The Minister of Citizenship and Immigration
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: September 25, 2006
REASONS FOR ORDER: HARRINGTON J.
APPEARANCES:
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Peter Shams
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Daniel Latulippe
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SOLICITORS OF RECORD:
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Saint-Pierre Grenier Barristers & Solicitors Montreal, Quebec
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John H. Sims, Q.C. Deputy Attorney General of Canada |