Ottawa, Ontario, January 5, 2006
PRESENT: THE HONOURABLE MR.JUSTICE BLAIS
BETWEEN:
APPLICANT
and
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
AND
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
RESPONDENTS
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is a application for the stay of a removal order of which the applicant was notified on December 30, 2005.
[2] The applicant was summoned to the airport on December 18, 2005 for his removal. He did not show up, and a warrant for his arrest was issued two days later, on December 20, 2005.
[3] The applicant was arrested on December 22, 2005, and has been detained since then. The applicant submitted a medical certificate showing that he was hospitalized on December 18, 2005, thereby explaining why he did not show up.
[4] In any event, he left the hospital two days later, before being arrested.
[5] On December 23, 2005, the applicant’s detention was reviewed by a Commissioner, as well as on December 30, 2005, that is to say, seven days later.
[6] On December 30, 2005, the applicant was advised that his removal was now scheduled for January 6, 2006.
[7] The notice given to the applicant on December 30, 2005, to the effect that he would be removed on January 6, 2006, is the subject of an application for judicial review underlying this application to stay.
[8] To succeed, the applicant must show there is a serious question to be tried. On this point, the respondents submitted there was no order or administrative decision that was the subject of a legal challenge, as no evidence was adduced to the effect that the applicant was contesting the application dated December 30 or that either a verbal or a written application had been made to the removal officer requesting that he postpone his decision.
[9] Right from the beginning, the applicant made an objection claiming that the application to stay should be dismissed because there was no underlying application.
[10] On this point, the applicant cited the decision rendered by colleague, de Montigny J. in Dung Tran v. M.C.I., (2005) F.C. 394. He concluded that removal or the determination of a date for removal is not a decision subject to judicial review. However, in Tran, the applicant had submitted two underlying applications, and the second one challenged the PRRA decision. This is not the case here, because the PRRA decision has never been contested.
[11] As far as the removal date was concerned, de Montigny J. specified in his decision at paragraph 2:
The underlying application for leave in this matter also challenges the Direction to Report for Removal on March 22, 2005. This is not a decision or order, as contemplated in s. 18.1(2) of the Federal Court Act, and it is thus not reviewable by way of an application for judicial review. Indeed, it appears that the applicant never asked the expulsion officer for deferral of his removal, nor did he ask for a deferral from the Escort Officer who served the Direction to Report. As a consequence, this motion requesting a stay of the removal order will proceed on the basis that the underlying application for judicial review is only challenging the PRRA decision.
[12] Obviously, in the case at bar, because the only application underlying the application for a stay presented by the applicant concerns removal, the respondents suggested that the application for a stay must be dismissed, given the lack of an underlying application.
[13] I agree with the respondent’s position, because nothing in the evidence shows that steps were undertaken, either verbally or in writing, to request that the removal officer grant an administrative stay or postpone the removal date.
[14] Although the Federal Court has broad sweeping powers in matters of judicial review, it must also be realized that decisions must be rendered in a practical context.
[15] If every purely administrative order issued by an officer of a department, whether it be Citizenship and Immigration or any other government agency, were subject to an application for judicial review, the complete administration of federal entities could be compromised, thereby rendering them totally ineffective.
[16] Far from concluding that federal administrative decisions are not subject to judicial review by the Federal Court, my comment, which is also to be considered as an approval of the decision rendered by de Montigny J. in Tran, supra, simply specifies that only a decision or an order is subject to judicial review under subsection 18.1(2) of the Federal Courts Act.
[17] Although the conclusion I reached on the above-mentioned point was to immediately rule that the application for a stay must be dismissed without deciding the issue on the merits, I nevertheless examined the matter to determine whether there was a serious issue, taking for granted that the notice of removal was a decision or an order within the meaning of subsection 18.1(2) of the Act.
[18] I am of the opinion the applicant did not succeed in convincing me that there would be a serious question to be tried if the Court did review the order of removal issued on December 30, 2005. In fact, the applicant did not succeed in his attempt to establish refugee status before the Immigration and Refugee Board and before the Federal Court. His PRRA application was also dismissed, and no application for judicial review was filed. The fact must be underlined that the applicant was not considered credible.
[19] The applicant essentially repeated the analysis of the files presented before the Immigration and Refugee Board and the Federal Court, but unfortunately these issues were already dealt with. It is not up to the Court that hears a application for a stay, to reopen the review process for decisions already rendered.
[20] As far as the decision rendered by the removal officer on December 30, 2005 is concerned, the applicant’s memorandum does not criticize him for anything specific. In fact, no application for postponing the decision was made to him. The fact that a few days earlier the applicant applied for permanent residence on humanitarian grounds is also insufficient, because this application was made the day after his arrest, that is to say, five days after the dated scheduled for his removal. This application was filed at the last minute and cannot be considered as being submitted within a reasonable time limit, considering that the applicant has been in Canada for more than three years.
[21] Therefore, there is no serious question to be tried.
[22] As far as irreparable harm is concerned, the applicant essentially repeated the arguments raised before the Immigration and Refugee Board, the Federal Court and the PRRA officer. These arguments have all been dismissed. The fact of invoking that the Syrian authorities must be advised of the applicant’s arrival several days in advance has more to do with the fact that the applicant is being removed from Canada and two officers must accompany him at the time of his removal.
[23] The arrest warrants that were filed, the probative value of which was challenged at the preceding hearings, seem to be linked to administrative offences committed by the applicant during his employment in Syria, and there is no evidence that the applicant will be arrested, detained or even tortured when he returns to Syria. Quite the contrary, the allegations of risk were dismissed by all the decision-makers involved.
[24] Therefore, the applicant has not convinced me that irreparable harm would result if he returned to his country of origin.
[25] As far as the balance of convenience is concerned, it is clearly in the Minister’s favour, who must under section 48 of the Immigration and Refugee Protection Act enforce a removal order as soon as it is reasonably practical.
[26] As far as the belated submission of medical evidence is concerned, the Court authorized the filing of this document, but it seems that the applicant was released from hospital within 48 hours, and the report specifies that in the circumstances, medication is appropriate. Although this medical report raises concerns, the doctor made no specific recommendation to the effect that the removal process must be stayed or cancelled. There is no evidence on record to the effect that the applicant’s country of origin, Syria, is unable to give the applicant the medical care required by his condition.
[27] Accordingly, the application for a stay cannot be allowed.
ORDER
THE COURT ORDERS:
That the application for a stay be dismissed.
Certified true translation
Michael Palles
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-20-06
STYLE OF CAUSE: JARADA ALAA v. MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS AND THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: Heard by conference call on January 5, 2006
REASONS FOR ORDER AND
ORDER BY: The Honourable Mr. Justice Blais
APPEARANCES:
|
Anthony Karkar
|
FOR THE APPLICANT |
|
Alexandre Tavadian
|
FOR THE RESPONDENTS |
SOLICITORS OF RECORD:
|
ANTHONY KARKAR Montréal, Quebec
|
FOR THE APPLICANT |
|
JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Montréal, Quebec
|
FOR THE RESPONDENTS |