Atwal v. Canada

Atwal v. Canada (Minister of Citizenship and Immigration), 2004 FCA 427 (CanLII)

http://canlii.ca/t/1jgv8

• Atwal was a PR from India who was convicted of serious criminality – robbery and imitation firearms offences
• Initial deportation order stayed on appeal of removal order to IAD, but Atwal breached a reporting condition and the stay order was then lifted by the IAD (deportation order reinstated)
• Pending removal, Atwal received a negative PRRA decision
• This case involves a request for a stay of removal pending the hearing and determination of Atwal’s appeal from an order of the Federal Court allowing the Minister’s application for judicial review of the Immigration Appeal Division and certifying a question
• Minister’s counsel conceded that there was a serious issue, given that the Federal Court had certified a question (again we don’t know what the question was or what the underlying IAD ruling was about)
• The Court then makes some comments about “irreparable harm”

o [13] There is no irreparable harm demonstrated by the appellant in regard to his business, separation from family, or being outside Canada while his appeal proceeds before the Federal Court of Appeal.
[14] Irreparable harm must constitute more than a series of possibilities. The onus is on the appellant to demonstrate in the evidence that the extraordinary remedy of a stay of removal is warranted.
[15] In this case, the appellant’s materials contain only assertions and speculation.
[16] The irreparable harm claimed by the appellant with regard to loss of job and separation from his family consists of the usual consequences of deportation. It is not of the type contemplated by the three-stage test for granting a stay. As stated by Pelletier J.: Melo v. Canada (Minister of Citizenship and Immigration), (2000), 2000 CanLII 15140 (FC), 188 F.T.R. 39 at para. 21:
If the phrase “irreparable harm” is to retain any meaning at all, it must refer to some prejudice beyond that which is inherent in the notion of deportation itself. To be deported is to lose your job, to be separated from familiar faces and places. It is accompanied by enforced separation and heartbreak.
[17] As stated by Evans J.A. in Selliah v. Canada (Minister of Citizenship and Immigration), 2004 FCA 261 (CanLII), at para. 13:
The removal of persons who have remained in Canada without status will always disrupt the lives that they have succeeded in building here. This is likely to be particularly true of young children who have no memory of the country that they left. Nonetheless, the kinds of hardship typically occasioned by removal cannot, in my view, constitute irreparable harm for the purpose of the Toth rule, otherwise stays would have to be granted in most cases, provided only that there is a serious issue to be tried.

• The Court also talks about balance of convenience, noting that an interest in executing a deportation order as soon as reasonably practicable weighs in favour of the Minister
Other cases citing Atwal:
• See Domingo v. Canada (Public Safety and Emergency Preparedness), 2009 FC 425 (CanLII), <http://canlii.ca/t/26584>

There is no evidence to support the applicant’s allegation:
[32] The onus is on the applicant to demonstrate, through clear and convincing evidence of irreparable harm, that the extraordinary remedy of a stay of removal is warranted. Irreparable harm must constitute more than a series of possibilities and cannot be simply based on assertions and speculation (Atwal v. Canada (Minister of Citizenship and Immigration), 2004 FCA 427 (CanLII)).