Montreal, Quebec, January 30, 2007
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
and
MINISTER FOR CITIZENSHIP AND IMMIGRATION
and THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1] It should be noted that the procedures in regard to the consideration of a stay of removal application are judicial and not of an extra judicial nature.
[10] I should say that the Applicants are being removed to the United States, not Angola. This Court has held that removal to the United States does not constitute irreparable harm, even if the person concerned may be detained. The United States is presumed to treat detainees and refugee claimants fairly. It will be up to the American authorities to decide whether the Applicants should eventually be removed to Angola (Mikhailov v. Minister of Citizenship and Immigration), [2000] F.C.J. No. 642; Akyol v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1182).
(Joao v. Canada (Minister of Citizenship and Immigration), 2005 FC 880, [2005] F.C.J. No. 1103 (QL).)
JUDICIAL PROCEDURE
[2] On January 17, 2007, Mr. Faraz Ulhaq Qureshi filed a motion in which he is seeking a stay of the removal order that is scheduled to be carried out on January 31, 2007.
[3] Mr. Qureshi seeks a stay until his Application for Leave, filed on January 17, 2006, has been disposed of by this Court. This Application challenges the decision of Ms Catherine Barthelemy, rejecting his request to stay his removal pending examination of his sponsorship application.
BACKGROUND
[4] The facts are as specified in the Applicant’s Record. One correction is required, that the Applicant was married in June 2006, not 2005, as mentioned at para. 8. Also the sponsorship application was submitted in September 2006, not 2005, as mentioned, at para. 9
ISSUE
[5] Has Mr. Qureshi demonstrated that he satisfied the tri-partite test, which this Court has decided, must be applied when it is called upon to decide whether or not to stay the execution of a removal order?
ANALYSIS
[6] In accordance with the jurisprudence of this Court, in order for Mr. Quereshi to succeed on this motion, he must demonstrate that al of the three elements of the tri-partite test identified by the Federal Court of Appeal in Toth v. Canada (Minister of Employment and Immigration), [1998] F.C.J. No. 587 (QL), have been established. Accordingly, Mr. Qureshi bears the burden of establishing that:
a) A serious issue will be tried in the Application for Leave that he filed within his motion;
b) He will suffer irreparable harm, if the removal order is executed; and,
c) The balance of convenience favours him rather than the Minister.
(RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 (QL); Wang v. Canada (Minister of Citizenship and Immigration), 2001 FCT 148, [2001] F.C.J. No. 295 (QL); Mikhailo v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 642 (QL).)
irreparable harm
[7] In his representations, the Applicant alleges that he will suffer irreparable harm, should he be deported. He alleges that:
i) His deportation to the USA is a stepping zone before being remove to Pakistan where he states he will suffer irreparable harm;
ii) If returned to Pakistan he will suffer irreparable harm given he is married to a Christian woman
iii) In the USA there is evidence to suggest he will be detained
iv) He will suffer irreparable harm by reason of separation from his wife and child
Allegations of deportation by the American authorities to an Applicant’s country, are considered by this Court to be “speculative”
[8] This Court has established that the issue of irreparable harm must be evaluated in relation to the country, to which the Minister proposes to return an individual. (Kerrutt v. Canada (Minister of Employment and Immigration), (1992) 53 F.T.R. 93, [1992] F.C.J. No. 237 (QL).)
[9] Allegations of deportation by the American authorities to an Applicant’s own country, are also considered by this Court to be “speculative”. Such speculations do not satisfy the requirement than an Applicant must face “irreparable harm”, in order for the stay of a removal order to be granted. (Rahim v. Canada (Minister of Citizenship and Immigration), 2001 FCT 130, [2001] F.C.J. No. 271 (QL), at para. 9; Aquila v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 36 (QL), at para. 15; Karthigesu v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1038 (QL), at para. 15; Gomez-Carillo v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 425 (QL), at paras. 5 and 6; Qawdan v. Canada (Minister of Citizenship and Immigration), [1992] F.C.J. No. 334 (QL), at para. 18; Kaberuk v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 369 (QL), at para. 4.)
The Applicant has not established that he faces a risk should he return to Pakistan
[10] Mr. Qureshi’s application for a PRRA was denied after a complete and thorough assessment of the evidence presented by him, as well as an assessment of documentary evidence obtained through independent sources. The PRRA Officer concluded that there exists no more than a slight possibility that Mr. Quereshi would be the subject of persecution or torture, if he were to return to Pakistan.
[11] Mr. Quereshi’s risk of a return to Pakistan has been evaluated several times. The RPD concluded that Mr. Quereshi was not a Convention refugee (Exhibit A of Ketsia Dorceus’s Affidavit). His PRRA application was denied.
Detention in the USA does not constitute irreparable harm
[12] Justice Sandra Simpson in Calderon v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 393 (QL), stated the following in relation to the meaning of “irreparable harm”:
[22] In Kerrutt v. M.E.I. (1992), 53 F.T.R. 93 (F.C.T.D.) Mr. Justice MacKay concluded that, for the purposes of a stay application, irreparable harm implies the serious likelihood of jeopardy to an applicant's life or safety. This is a very strict test and I accept its premise that irreparable harm must be very grave and more than the unfortunate hardship associated with the breakup or relocation of a family.
[13] This Court has stated that arguments to the effect that an applicant may risk detention in the United States are too speculative to support a conclusion of “irreparable harm”. In Mikhailov, above, Justice Marc Nadon stated the following:
[12] Even if the Applicants were detained, I am not convinced that this would constitute irreparable harm. Irreparable harm is not mere inconvenience or financial or emotional hardship.
(See also: Karthigesu, above, at para. 10; Minister of Employment and Immigration v. Satiacum, [1999] F.C.J. No. 505 (F.C.A.) (QL); Nabut v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1392, [2001] F.C.J. No. 1878 (QL); Akyol v. Canada (Minister of Citizenship and Immigration), 2003 FC 931, [2003] F.C.J. No. 1182 (QL), at para. 10; Joao v. Canada (Minister of Citizenship and Immigration), 2005 FC 880, [2005] F.C.J. No. 1103 (QL), at para. 10.)
The fact that the Applicant will be separated from his wife does not constitute “irreparable harm”
[14] Mr. Qureshi argues the fact he will be separated from his wife constitutes “irreparable harm”.
[15] It is to be emphasized that Mr. Quereshi and his wife met in December 2004 and their daughter was born on October 2005. Furthermore, they got married in June 2006. It is only in September 2006 that the application for sponsorship was submitted. Mr. Qureshi himself is responsible for not having ensured his status in Canada.
[16] The jurisprudence of this Court establishes that “irreparable harm” implies the “serious likelihood of jeopardy to an applicant’s life or safety”. It must be “very grave and more than the unfortunate hardship associated with the break-up or relation of a family”. (Kerrutt, above; Simpson v. Canada (Minister of Employment and Immigration), [1993] F.C.F. No. 380 (QL); Calderon, above; Mobley v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 65 (QL); Mallia v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 369 (QL); Mikhailov, above; Aquila, above; Perry v. Canada (Minister of Public Safety and Emergency Preparedness), 2006 FC 378, [2006] F.C.J. No. 473 (QL), at para. 31.)
[17] Even where separations caused by removal may produce substantial economic or psychological hardship to a family unit, the test remains whether Mr. Qureshi himself will suffer irreparable harm. (Mariona v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1521 (QL); Carter v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1011 (QL).)
[18] There are no grounds upon which this Court could make a finding that Mr. Qureshi will suffer “irreparable harm” should he be returned to the United States.
The balance of convenience favours the Minister
[19] According to section 48 of the Act, the Respondent has a duty to execute an enforceable removal order “as soon as is reasonably practicable”:
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48. (1) A removal order is enforceable if it has come into force and is not stayed.
(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. |
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.
(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. |
[20] In order to demonstrate that the balance of convenience favours Mr. Qureshi, the latter should have demonstrated that there is a public interest not to remove him as scheduled: RJR-MacDonald, above; Blum v. Canada (Minister of Citizenship and Immigration) (1994), 90 F.T.R. 54, [1994] F.C.J. 1990 (QL).)
[21] As stated by the Mr. Justice Sopinka in Canada (Minister of Employment and Immigration) v. Chiarelli (1992) 135 N.R. 161, [1992] 1 S.C.R. 711 (though dealing with an extradition case):
…The most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in the country…
[22] Mr. Qureshi has not demonstrated that the balance of convenience favours the non-application of the law :
(iii) Balance of convenience
[21] Counsel says that since the appellants have no criminal record, are not security concerns, and are financially established and socially integrated in Canada, the balance of convenience favours maintaining the status quo until their appeal is decided.
[22] I do not agree. They have had three negative administrative decisions, which have all been upheld by the Federal Court. It is nearly four years since they first arrived here. In my view, the balance of convenience does not favour delaying further the discharge of either their duty, as persons subject to an enforceable removal order, to leave Canada immediately, or the Minister's duty to remove them as soon as reasonably practicable: IRPA, subsection 48(2). This is not simply a question of administrative convenience, but implicates the integrity and fairness of, and public confidence in, Canada's system of immigration control.
(Shelliah v. Canada (Minister of Citizenship and Immigration), 2004 FCA 261 (C.A.F.), [2004] F.C.J. No. 1200 (QL); Dasilao v. Canada (Minister of Citizenship and Immigration), 2004 FC 1168 (F.C.), [2004] F.C.J. 1410 (QL); Membreno-Garcia v. Canada (Minister of Employment and Immigration), [1992] 3 C.F. 306, [1992] A.C.F. No. 535 (QL); Kerrutt, above.)
CONCLUSION
[23] The Applicant’s Motion to stay the execution of the removal order is denied.
JUDGMENT
THIS COURT ORDERS that the motion for an order to stay the removal be dismissed.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-229-07
STYLE OF CAUSE: Faraz Ulhaq Qureshi
v. MINISTER FOR CITIZENSHIP AND IMMIGRATION AND THE MINISTER
FOR PUBLIC SAFETY AND EMERGENCY
PREPAREDNESS
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: January 29, 2007
APPEARANCES:
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Ms. Pia Zambelli
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FOR THE APPLICANT |
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Ms. Claudia Gagnon
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SOLICITORS OF RECORD:
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DIANE NANCY DORAY Montreal, Quebec
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JOHN H. SIMS, Q.C. Deputy Attorney General of Canada
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