Date: 19990412
Docket: IMM-1235-99
IMM-1236-99
BETWEEN:
RAJA ISHTIAQ ASGHAR KIANI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.
BACKGROUND
[1] The applicant, Raja Ishtiaq Asghar Kiani, by motion filed on March 17, 1999, sought an order from this Court staying the execution of a removal order scheduled for Tuesday, April 6, 1999. The execution of the removal order was set into motion by the issuance of a direction to report dated March 3, 1999, from N. Weller of Citizenship and Immigration Canada (CIC) directing the applicant to be at Toronto International Airport at 01:00 p.m. on April 6, 1999 for a 03:10 p.m. flight from Toronto to Islamabad, Pakistan.
[2] The matter came before me in Toronto on March 29, 1999. On Tuesday, April 6, 1999, I made an order staying the execution of the removal order. These are my reasons for granting the stay of the execution of the removal order until the determination of the application for leave and judicial review.
[3] The underlying applications for leave and judicial review, dated and filed March 12, 1999 seek:
| (a) In one case (IMM-1235-99) a review of a decision dated November 27, 1998 by CIC that the applicant was not a member of the Post-Determination Refugee Claimants in Canada Class (PDRCC) principally because the applicant was: |
| ...a person described in paragraph 19(1)(c) of the Immigration Act in that you have been convicted of an offence whether in Canada or abroad for which a maximum penalty of 10 years or more could, under Canadian law, be imposed. |
| The applicant seeks an extension of time in connection with this application. |
| (b) In the other case (IMM-1236-99) a finding and appropriate relief against the respondent for unduly delaying the consideration: |
| (i) pursuant to subsection 114(2) of the Act, on humanitarian and compassionate grounds, for processing in Canada, of the applicant's application for permanent resident, sponsored by his wife; and |
| (ii) pursuant to paragraph 19(1)(c)(ii) of the Act of the applicant's rehabilitation application. |
[4] The focus of both of these applications is on the need for a risk assessment before removal.
THE REFUGEE CLAIM DECISION
[5] Mr. Kiani is a citizen of Pakistan who came to Canada on September 24, 1992 under a visitor's visa to attend a prosthetics clinic. Mr. Kiani said, in his affidavit in support of this motion, that he lost his left leg below the knee due to injuries sustained as a result of a gunshot from the police during a demonstration in Pakistan.
[6] In December of 1992, Mr. Kiani made a refugee claim based on fear of persecution in Pakistan because of his political opinions.
[7] The Refugee Division of the Immigration and Refugee Board (CRDD) heard the matter on June 30, 1995 and August 24, 1995 issuing its decision on July 23, 1996, finding Mr. Kiani not to be a convention refugee.
[8] The CRDD accepted that the applicant was a politically active student, an organizer of Pakistan People's Party (PPP) and that he participated in protest demonstrations. The CRDD also accepted that Mr. Kiani came from a well-known politically active family and that he was elected president of the People's Youth Organization in Rawalpindi.
[9] The CRDD, however, did not believe, questioned or doubted some of Mr. Kiani's evidence and in particular:
| (a) whether his leg injury was as a result of a gunshot during a police demonstration or was the result of a train accident; |
| (b) on the status of June 1987 or March 1988 charges or First Information Reports made by the police against the applicant as a result of protest demonstrations " because the PPP came to power in 1989 and Benazir Bhutto ordered the withdrawal of certain political cases. |
| (c) on outstanding charges against the applicant stemming from his participation in a political rally in July of 1992 which ended in a serious clash between police and demonstrators from which the applicant is said to have escaped, gone into hiding before coming to Canada. In this respect, the CRDD was influenced by a statutory declaration dated November 16, 1993 deposed to by a Designated Canadian Immigration Officer, working out of the Canadian Embassy in Pakistan, who said he had investigated the outstanding charges or First Information Reports against the applicant. After visiting various police stations, Mr. Malik, the Designated Canadian Immigration Officer, concluded in his statutory declaration: |
| (i) a case was registered against the applicant for the June 1987 incident "but no accused could be arrested and the case was closed". |
| (ii) a case was registered against the applicant for the March 1988 incident but he applicant was "acquitted on July 18, 1991 due to compromise"; and |
| (iii) there was no case registered against the applicant for the incident on July 5, 1992. |
[10] In any event, the CRDD concluded that the PPP had, after losing power in the early 1990s, returned to power at the national level and this changed circumstance made it such that the applicant did not have to fear being prosecuted.
[11] The applicant sought leave and judicial review of the CRDD's decision and leave was refused by this Court.
THE ADJUDICATOR'S DECISION
[12] On February 8, 1994, an Immigration Officer, pursuant to section 27 of the Act, reported to the Deputy Minister of CIC that the applicant had breached several sections of the Immigration Act including a breach of paragraph 19(1)(c.1)(ii) which reads:
19. (1) No person shall be granted admission who is a member of any of the following classes:
. . .
(c.1) persons who there are reasonable grounds to believe
. . .
| (ii) have committed outside Canada an act or omission that constitutes an offence under the laws of the place where the act or omission occurred and that, if committed in Canada, would constitute an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more, |
except persons who have satisfied the Minister that they have rehabilitated themselves and that at least five years have elapsed since the expiration of any sentence imposed for the offence or since the commission of the act or omission, as the case may be;
19. (1) Les personnes suivantes appartiennent à une catégorie non admissible_:
. . .
c.1) celles dont il y a des motifs raisonnables de croire qu'elles ont, à l'étranger_:
. . .
| (ii) soit commis un fait " acte ou omission " qui constitue une infraction dans le pays où il a été commis et qui, s'il était commis au Canada, constituerait une infraction qui pourrait être punissable, aux termes d'une loi fédérale, d'un emprisonnement maximal égal ou supérieur à dix ans, |
sauf si elles peuvent justifier auprès du ministre de leur réadaptation et du fait qu'au moins cinq ans se sont écoulés depuis la commission du fait;
[13] On May 10, 1994, the Deputy Minister directed an inquiry be held.
[14] That inquiry was held before Adjudicator Roberts on July 12, 1994. The Malik affidavit described in paragraph [8](c) of these reasons was not introduced in evidence before the Adjudicator.
[15] The Adjudicator found a number of breaches of the Act including that Mr. Kiani was a person described in paragraph 19(1)(c.1)(ii) because of the applicant's participation in the July 5, 1992 riots.
[16] As a result, on July 12, 1994, the Adjudicator issued a conditional deportation order against the applicant.
[17] With leave of this Court, the applicant sought judicial review of the Adjudicator's decision. That judicial review was denied by this Court but a question certified to the Court of Appeal as follows:
| Whether the adjudicator erred in finding on the basis of the evidence before him that he had reasonable grounds to believe that the applicant had committed outside Canada certain acts or omissions which constituted offenses under the laws of Pakistan within the meaning of subparagraph 19(1)(c.1)(ii) of the Immigration Act, R.S.C. 1985, c. I-2, as amended. |
[18] On October 28, 1998, the Court of Appeal dismissed the applicant's appeal holding that the conditional deportation order was properly made against the applicant because the Adjudicator had reasonable grounds to believe that the applicant was a person who came within section 19(1)(c.1)(ii) of the Immigration Act.
OTHER EVENTS
[19] On February 14, 1998, Mr. Kiani married Expetita Tagura, a permanent resident in Canada.
[20] During the Spring of 1998, an application for Mr. Kiani's permanent residence in Canada to be processed in Canada was prepared. Mr. Kiani's application was submitted as a spouse of a Canadian permanent resident.
[21] At the same time, an application for approval of rehabilitation was prepared. In this application, Mr. Kiani refers to the July 5, 1992 riot while armed and indicates that he was not convicted " false charges. He also refers to the March 1988 incident in respect of which he says he was acquitted.
[22] Mr. Kiani, in his explanation of the July 5, 1992 events says this:
| I did not actually commit an offence as described above. I advised Canada Immigration that I had been falsely charged for political reasons in Pakistan. I was reported, brought to inquiry and ordered deported as reported. |
| I am making this request because having been found described, I may have a legal duty to request rehabilitation. |
| Attached is my P.I.F., the report and deportation order. A declaration of a Canadian visa officer, relied on by the Refugee Board to find I was not charged, is attached. |
[23] Both the application for permanent resident and rehabilitation were sent by Mr. Kiani's solicitors to the Case Processing Centre of CIC.
[24] Mr. Kiani states in his affidavit in support of this motion that he had recently called the CIC Telecentre and was informed that his applications were received on August 10, 1998 and were being processed as of October 1998.
[25] On January 8, 1999, the applicant received a letter from CIC informing him that his application for permanent residence had been transferred from Mississauga to the Scarborough Canada Immigration Centre and that he would be "advised by this office within 6 months of the disposition of your case".
[26] The applicant's motion record includes the U.S. State Department's Pakistan Country Report on Human Rights Practices for 1998. This report is dated February 26, 1999. This report mentions that the Pakistan Muslim League (PML) came to power in February of 1997 with Nawaz Sharif as Prime Minister. Mr. Sharif had been in power in 1992 when Mr. Kiani left for Canada. Without going into details, this report states that the Government's human rights record is poor with serious problems in several areas.
[27] The respondent filed no affidavit in response to this stay motion. There was no cross-examination of Mr. Kiani on his affidavit.
ANALYSIS
[28] The motion for interim stay was argued before me on the basis of the well-known three-part test of serious issue, irreparable harm and balance of convenience.
(a) Serious issue
[29] The Supreme Court of Canada in RJR MacDonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. 311, at page 337, on this branch of the test said the threshold was a low one and the judge on the application must make a preliminary assessment of the merits of the case. The Supreme Court of Canada, in the type of case such as the one before me, stated that once satisfied the application is neither frivolous nor vexatious, the motion judge should proceed to consider the second and third test.
[30] The applicant submits that there are two serious issues raised for consideration:
| (a) The rejection of the PDRCC application on November 27, 1998 on the grounds that the applicant was convicted of an offence in Canada or abroad; and |
| (b) The delays in processing his application for permanent residence and his rehabilitation application. |
[31] I agree with the applicant's submission.
[32] The respondent rejected the applicant as a member of the PDRCC because Mr. Kiani was a person described in paragraph 19(1)(c) of the Act that is a person convicted of an offence for which a penalty of ten years or more could, under Canada law, be imposed. Counsel for the respondent conceded that the reference to paragraph 19(1)(c) was wrong. The CIC's rejection had, as a consequence, that the applicant received no risk assessment should removal to Pakistan be effected.
[33] As to the general importance of the PDRCC process, see Rajendran v. Canada, IMM-1208-99, a decision of Sharlow J. dated March 18, 1999 and Chieu v. Canada, [1998] F.C.J. No. 1776, (FCA).
[34] In terms of delay in processing Mr. Kiani's applications, the decisions of this Court suggest that, in some circumstances, delay may be a ground for mandamus or other appropriate relief. See Appiagyei v. Canada, IMM-2486-95, a decision of Rothstein J., as he then was, dated September 18, 1998 and Sinnakkuddy v. Canada, IMM-201-99, a decision of Teitelbaum J. dated January 19, 1999.
(b) Irreparable harm
[35] According to the Supreme Court of Canada in RJR MacDonald, supra, irreparable harm refers to the nature of the harm suffered rather than its magnitude and it is harm which either cannot be quantified in monetary terms or which cannot be cured.
[36] In Sivakumar v. Canada, [1996] 2 F.C. 872, the Federal Court of Appeal considered an appeal where there were pending charges and the appellant feared arrest, detention and other human rights violations.
[37] The Federal Court of Appeal allowed the appeal and granted a removal stay, holding on the second branch of the tri-partite test, that removal to Sri Lanka would involve risk of harm to the appellant not compensable in damages. The applicant in the case before me invokes fear of prosecution of pending charges, particularly the July 5, 1992 charge. This charge arose out of riots by PPP supporters against the then existing government. The PPP is in opposition in Pakistan today. Mr. Kania's return to Pakistan would be in the context of country conditions in terms of human rights, as described in the U.S. State Department Report. Irreparable harm has been shown.
(c) Balance of convenience
[38] As in Sivakumar, supra, I find that balance of convenience favours the applicant. See also but in another context Strachan v. Canada, [1998] F.C.J. No. 1715, a November 18, 1998 decision of Wetston J.
[39] As a result, the stay application is granted pending determination of leave and judicial review of the applicant's leave applications.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
APRIL 12, 1999