Date: 20050111
Docket: IMM-10557-04
Citation: 2005 FC 16
BETWEEN:
SAWINDER KAUR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] Upon motion by the Applicant for an Order staying the execution of the deportation order made against her and scheduled for Wednesday, January 12, 2005, pending disposition of her underlying application for leave and for judicial review;
[2] Upon hearing counsel for the parties; and
[3] Upon reading the material filed by the parties;
[4] I have serious doubts as to the existence of a serious issue in this matter, given that the Applicant is merely (1) invoking the negligence of her immigration consultant and (2) challenging the PRRA Officer's assessment of the facts, which in my view is supported by serious elements of proof.
[5] In any event, assuming that the underlying application for leave and for judicial review raises a serious issue, the motion is dismissed on the ground that the Applicant has failed to establish irreparable harm. Indeed, the Applicant's allegation of harm from an individual called Mithu is purely speculative. The documentary evidence, as reasonably found by the PRRA Officer, indicates that while not perfect state protection is available to the Applicant in India. In light of the country condition documents, which reveal that there are multiple police forces, both local and regional, and a judicial process both for supervising the police forces and for making civil and criminal complaints as a victim of threats of violence, the Applicant has failed to rebut the presumption of available state protection.
[6] With respect to the Applicant's allegation that her appeal will be rendered moot because if removed she would be unable to return to Canada, this kind of argument was recently dismissed by the Federal Court of Appeal in Ghanaseharan Selliah v. Canada (M.C.I.) 2004 FCA 261. In that case, the applicants argued that the removal would render their appeal nugatory, and the Court of Appeal held:
Since the appeal can be ably conducted by experienced counsel in the absence of the appellants and since, if the appeal is successful, the appellants will probably be permitted to return to Canada at public expense, I cannot accept that removal renders their right of appeal nugatory.
[7] The motion is also dismissed on the additional ground that in the circumstances the balance of convenience favours the Respondent, who has the statutory duty to execute removal orders as soon as reasonably practicable (Immigration and Refugee Protection Act, S.C. 2001 c. 27, section 48).
[8] Accordingly, the requested stay is denied.
(Sgd.) "Yvon Pinard"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-10557-04
STYLE OF CAUSE: Sawinder Kaur v MCI
PLACE OF HEARING: Vancouver BC
DATE OF HEARING: January 10th, 2005
REASONS FOR ORDER : Pinard J.
DATED: January 11, 2005
APPEARANCES:
Ms. Antya Schrack FOR APPLICANT
Mr. Jonathan Shapiro FOR RESPONDENT
SOLICITORS OF RECORD:
Ms. Antya Schrack FOR APPLICANT
Vancouver BC
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada