Date: 20031105
Docket: IMM-8256-03
Citation: 2003 FC 1295
BETWEEN:
NAWAZ AHMAD
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] These are brief reasons for the Court's decision to allow an application by the Applicant for a stay of his removal from Canada, scheduled for November 4, 2003, pending determination of his Application for Leave, and if leave be granted, of his Application for Judicial Review of the decision of a pre-removal risk assessment ("PRRA") officer, dated September 24, 2003. By that decision, the officer determined that the Applicant, if here were removed from Canada to his native Pakistan, would not face a risk of persecution, or of torture, or risk to his life, or of cruel and unusual punishment within sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (as amended), ("IRPA").
[2] The Applicant was born and lived in Pakistan until 1999, when he came to Canada and claimed Convention refugee status. That claim was denied by the CRDD in October 1999. Later the Applicant applied for a determination that he was a member of the PDRCC class, an application not dealt with before the IRPA came into effect in June 2002.
[3] In August 2003, the Applicant was invited to update previous PDRCC submissions to be considered under the pre-removal risk assessment process provided by IRPA. Submissions were made by counsel on the Applicant's behalf in September 2003.
[4] On October 7, 2003, the Applicant appeared at the enforcement office of CIC and was given a negative PRRA decision. He was then advised to arrange for his travel from Canada and to report back to the centre. Ultimately, arrangements were made for him to leave for Pakistan on November 4 and he was directed to report for removal on that day.
[5] Meanwhile, following the negative PRRA decision, the Applicant applied for leave and for judicial review of that decision. He also applied for a stay of his pending removal to Pakistan, by application filed on October 28 and heard in Vancouver on November 3.
[6] After hearing counsel for the parties I found that the underlying Application for Leave and for Judicial Review does raise an arguable case, one that can only be determined when leave is considered and, if granted, when the Application for Judicial Review is determined. That serious issue concerns construction by the PRRA officer of the evidence before her that persons similarly situated to the Applicant in his relations with the PPP party in Pakistan were not subject to a risk of systematic violence, though persons in a prominent position or engaged as high profile activists or leaders of the PPP might be subject to such risk. There was some objective evidence contrary to that found by the PRRA officer in certain of the documents before her which were not referred to in her decision. Thus, a key basis of her decision, and whether that basis was patently unreasonable on the evidence before her, is raised as an issue by the underlying Application for Judicial Review.
[7] While it may be that in the ordinary course, where a refugee claim has been denied and a negative PRRA assessment has been rendered, there is not a basis on which the Court would readily intervene, where the PRRA assessment is questioned and said to be patently unreasonable, and that argument is not effectively dealt with at this stage, in my view a serious issue is raised.
[8] Moreover, the nature of that serious issue is such that if the Applicant were to be removed and the finding of the PRRA officer were in error, the Applicant would indeed be exposed to risk if he were now returned to Pakistan. That risk is such that his opportunity for consideration of the risk that concerns him, should he be successful in his Application for Leave and for Judicial Review, could not effectively be raised. Thus, his right to raise a claim would be lost. That loss, in my view, constitutes irreparable harm.
[9] In these circumstances, where a serious issue is raised and the Applicant demonstrates the likelihood of irreparable harm unless a stay is granted, the balance of convenience clearly favours the grant of a stay.
[10] For these reasons, an Order issued on November 3 directing a stay of the removal of the Applicant from Canada pending determination of his Application for Leave and, if leave be granted, pending determination of the Application for Judicial Review.
(Sgd.) "W. Andrew MacKay"
Judge
Vancouver, B.C.
November 5, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8256-03
STYLE OF CAUSE: NAWAZ AHMAD
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: November 3, 2003
REASONS FOR ORDER: MacKAY J.
DATED: November 5, 2003
APPEARANCES:
Mr. Shane Molyneaux for Applicant
Ms. Helen Park for Respondent
SOLICITORS OF RECORD:
Elgin, Cannon and Associates for Applicant
Barristers and Solicitors
Vancouver, B.C.
Morris Rosenberg for Respondent
Deputy Attorney General of Canada