Date: 20030729
Docket: IMM-5344-03
Citation: 2003 FC 931
OTTAWA, ONTARIO, THIS 29th DAY OF JULY, 2003
Present: THE HONOURABLE MR. JUSTICE LUC MARTINEAU
BETWEEN:
ERDAL AKYOL, MURUVVET AKYOL, BETUL AKYOL,
ABDULLAH AKYOL, BUSRANUR AKYOL AND
OSMANNURI AKYOL
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
(Delivered from the Bench at Ottawa, Ontario,
on Wednesday, July 16, 2003)
[1] The applicants have brought a motion for a stay of execution of the removal order now being scheduled for July 17, 2003 on the grounds that there is a serious issue to be tried, that they will suffer irreparable harm and that the balance of convenience favours the applicants. These are the reasons previously delivered orally, denying this motion, which have been edited for syntax and grammar with added references to the relevant case law.
[2] I accept the summary and characterization of the facts made by the respondent in the respondent's memorandum of argument which refers to the Pre-Removal Risk Assessment (the "PRRA") officer's notes to file in explanation of the negative PRRA decision, and the reasons of the Immigration and Refugee Board (Refugee Division) (the "Refugee Division") rejecting the applicants' refugee claim.
[3] In particular, I note that the Refugee Division found that if the principal applicant genuinely feared returning to Turkey, he would have had his family join him in North America, after his initial departure from that country, rather than risking additional harm by returning. Further, the Refugee Division did not find it reasonable that the applicants, because they had found a good obstetrician, would remain in the United States ("U.S.") with no status and at risk of deportation to the country they allegedly fear, without either making a claim for protection or proceeding to Canada, which was only a few hours away by car. The Refugee Division found the applicants' behaviour "entirely inconsistent with a well-founded fear of persecution", and noted case law stating that a lack of evidence going to the subjective element of a claim is, on its own, fatal to the claim. The Refugee Division went on to find that the applicants had not established that their claim was objectively well-founded. In particular, it noted that the documentary evidence did not support the applicants' claim of a well-founded fear of persecution in Turkey by reason of being Fetullah Gulen supporters. The Refugee Division cited evidence which provided that the Gulen movement was on relatively good terms with state authorities, was less likely to suffer from abuses or from the state's repressive policies than other Islamic groups, and had accumulated significant amounts of social, economic, and political power. Further, the Refugee Division found that while the female and minor applicants may face discrimination in Turkey, they would not face persecution. Accordingly, it found that the applicants were not Convention refugees in a decision dated June 24, 2002. The applicants' application for leave and for judicial review of that decision was dismissed by this Court.
[4] The applicants made virtually the same allegations in their PRRA application as they did before the Refugee Division. The applicants' PRRA application was also rejected. In a decision dated June 6, 2003, the PRRA officer considered the applicants' allegations of risk based on their Kurdish identity, their religious beliefs as Sunni Muslims and followers of Fetullah Gulen (including the female applicants' claim concerning their wearing of the hijab), and, with regards to the military obligations of the principal applicant and his eldest son. The PRRA officer concluded that the applicants were not Convention refugees, and were not persons in need of protection pursuant to section 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"). It is the PRRA decision that is the subject of the within application for leave and for judicial review.
[5] Assuming without deciding that there is a serious issue to be tried in this matter, the requested temporary stay of removal of the applicants from Canada is denied on the ground that no irreparable harm has been established.
[6] First, there is no evidence of any likelihood of jeopardy to the applicants' life or safety: Kerrutt v. Canada (Minister of Employment and Immigration) (1992), 53 F.T.R. 93; Atakora v. Canada (Minister of Employment and Immigration) (1993), 68 F.T.R. 122 ("Atakora"); Kaberuka v. Canada (Minister of Employment and Immigration) (1994), 27 Imm. L.R. (2d) 201 (F.C.T.D.); Calderon v. Canada (Minister of Citizenship and Immigration) (1995), 92 F.T.R. 107; and Duve v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 387 (F.C.T.D.).
[7] Second, irreparable harm must not be speculative nor can it be based on a series of possibilities. The Court must be satisfied that the irreparable harm will occur if the relief sought is not granted: Atakora, supra, at para. 12; Syntex Inc. v. Novopharm Inc. (1991), 36 C.P.R. (3d) 129 at 135 (F.C.A.); and Molnar v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 559, 2001 FCT 325 at para. 15.
[8] Third, the Court notes that the risk to the applicants upon their return to Turkey has been assessed twice - once by the Refugee Division, and a second time by the PRRA officer. Both administrative tribunals made findings of fact that the applicants would not be at risk. In the case at bar, the Refugee Division clearly called into question the applicants' credibility as it found, based on the applicants' behaviour over a prolonged period, that they lacked the subjective fear of persecution that was the very basis of their claim. This Court has held that where an applicant's account was found not to be credible by the Refugee Division, this account cannot serve as a basis for an argument supporting irreparable harm in a stay application: Saibu v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 151, 2002 FCT 103 at para. 11; Hussain v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 751 at para. 12; and Ahmed v. Canada (Minister of Citizenship and Immigration), [2001] 1 F.C. 483 at 492-93 (T.D.).
[9] Fourth, the failure of a business as a consequence of removal does not necessarily constitute irreparable harm in every case. The applicants cite Toth v. Canada (Minister of Employment and Immigration) (F.C.A.) (1988), 86 N.R. 302 ("Toth") in support of this argument. In this decision, a stay was granted in circumstances where the deportation order would have meant the end of a business which was supporting the applicant's family and a number of employees. One may suffer irreparable harm if one has a business and cannot divest oneself of that business, and as a result, loses a substantial sum of money. In the case at bar, I accept the respondent's submission that there is absolutely no evidence regarding the worth of the principal applicant's business, whether it employed anyone other than the applicant, whether or not the applicant would be able to sell the business, or even what kind of financial loss, if any, the applicants would face. As a result, the applicants have not established irreparable harm: Siljanovski v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 923 at paras. 6-7 (T.D.); Startchev v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 931, 2002 FCT 690 at para. 8; Sanchez v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1647 at para. 7 (T.D.); Qayyum v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 192 at para. 2 (T.D.); and Toth, supra.
[10] Fifth, I also accept the respondent's submission that the alleged U.S. detention does not constitute irreparable harm in the present circumstances. The Court notes that this allegation is based on the affidavit of Burhan Celik, a member of the Turkish community in Canada and friend of the applicants, who ostensibly made a call to a U.S. lawyer who gave the opinion that the applicants would be detained in the U.S. and that the conditions of detention would be similar to that of a Gulag. The principal applicant's affidavit also mentions being aware of "terrible conditions" in U.S. detention, but does not make clear the source of this information. The Court also notes that there are absolutely no details provided about the alleged terrible conditions, and that there is no sworn evidence from this U.S. lawyer in the record. Further, there is no objective documentary evidence in the record to establish that detention conditions in the U.S. would be so intolerable as to constitute irreparable harm. Further, even if the applicants are detained, it has to be assumed that the U.S. authorities will treat them fairly. Recently, this Court in Nabut v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1878, 2001 FCT 1392 ("Nabut") considered a claimant's argument that, as he was an Arab and was suspected of being associated with terrorists, his removal to the U.S. would result in irreparable harm as his human rights might not be respected during a long period of incarceration. Rejecting this argument, the Court followed the Federal Court of Appeal decision in Canada (Minister of Employment and Immigration) v. Satiacum (F.C.A.) (1989), 99 N.R. 171 and held that it was prepared to assume that the applicant would receive due process and a fair trial in the U.S.: Nabut, supra, at para. 8; and Mikhailov v. Canada (Minister of Citizenship and Immigration) (2000), 191 F.T.R. 1.
[11] Sixth, the deportation of individuals while they have outstanding leave applications and/or other litigation before the Court, is not a serious issue nor does it constitute irreparable harm: Ward v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 86 (T.D.) at para. 12; and Owusu v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1166 (T.D.). I also note that the application for leave and judicial review will continue regardless of where the applicants are located, and that they can provide instructions to counsel as to how to proceed with the litigation from the U.S. or, should they end up there, Turkey. Further, this Court cannot speculate on whether foreign authorities might detain or arrest the applicants, even if such detention or arrest would have the consequence of rendering any further decision moot should an outstanding application for leave and for judicial review be granted: Blum v. Canada (Minister of Citizenship and Immigration) (1994), 90 F.T.R. 54 at para. 8; see also Karthigesu v. Canada (Minister of Citizenship and Immigration) (1998), 153 F.T.R. 204; and Bada v. Canada (Minister of Citizenship and Immigration) (1992), 56 F.T.R. 106 at 107.
[12] In conclusion, I find that there is nothing about the applicants' case which takes it beyond the usual results of deportation (Melo v. Canada (Minister of Citizenship and Immigration) (2000), 188 F.T.R. 39 at para. 21). Under such circumstances, the balance of convenience is in favour of the respondent as public interest requires that the removal order be executed as soon as is reasonably practicable (Celis v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1679, 2002 FCT 1231 at para. 4).
[13] Accordingly, an order dismissing the present motion for a stay of removal has been issued.
__________________________________
Judge
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5344-03
STYLE OF CAUSE: ERDAL AKYOL ET AL. v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: OTTAWA, ONTARIO
TORONTO, ONTARIO
DATE OF HEARING: JULY 16, 2003
REASONS FOR ORDER: THE HONOURABLE MR. JUSTICE MARTINEAU
APPEARANCES:
MR. LORNE WALDMAN FOR THE APPLICANTS
MS. ANDREA HAMMELL FOR THE RESPONDENT
SOLICITORS OF RECORD:
WALDMAN & ASSOCIATES FOR THE APPLICANTS
TORONTO, ONTARIO
MR. MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA