Hussain v. Canada (Minister of Public Safety and Emergency Preparedness), 2012 FC 1544

• Judge: Tremblay-Lamer, J.
• Court: Federal Court (Canada)
• Case Date: December 18, 2012
• Jurisdiction: Canada (Federal)
• Citations: 2012 FC 1544;(2012), 424 F.T.R. 206 (FC)

Hussain v. Can. (2012), 424 F.T.R. 206 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2012] F.T.R. TBEd. DE.064

Halla Hussain (demanderesse) v. Le Ministre de la Sécurité Publique et de la Protection Civile (défendeur)

(IMM-3990-12; 2012 CF 1544; 2012 FC 1544)

Indexed As: Hussain v. Canada (Minister of Public Safety and Emergency Preparedness)

Federal Court

Tremblay-Lamer, J.

December 24, 2012.

Summary:

Hussain, a citizen of Pakistan, filed a pre-removal risk assessment application related to a sexual assault complaint she had filed against her father-in-law, and requested that her removal be deferred. An enforcement officer denied a stay of removal on the grounds that no subpoena had been received and that a year had passed between the alleged sexual assault and the filing of the application. Hussain applied for judicial review.

The Federal Court allowed the application. The officer did not consider Hussain's special personal circumstances and accordingly did not exercise his discretion under s. 48(2) of the Immigration and Refugee Protection Act. The court quashed the officer's decision, and referred the matter back to another officer for reconsideration.

Administrative Law - Topic 3315

Judicial review - General - Bars - Misconduct or unclean hands - An enforcement officer denied the applicant a stay of removal until a decision on her application for a pre-removal risk assessment could be made - On judicial review, the Federal Court disagreed with the respondent's argument regarding "unclean hands" or bad faith - Although the applicant failed to report for removal several times, in every case her absence was excused by the medical evidence on record - "In light of the evidence, I cannot find any misconduct or lies on the part of the applicant that would have a negative impact on the integrity of judicial and administrative processes" - See paragraph 28.

Aliens - Topic 1704

Exclusion and expulsion - Immigration - Exclusion - General - Stay of exclusion or removal order - [See Aliens - Topic 1800 ].

Aliens - Topic 1800

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Deportation or removal order - Stay of - The applicant, a citizen of Pakistan, filed a pre-removal risk assessment application related to a sexual assault complaint she had filed against her father-in-law, and requested that her removal be deferred until the application was decided - An enforcement officer denied a stay of removal on the grounds that no subpoena had been received and that a year had passed between the alleged sexual assault and the filing of the application - The Federal Court quashed the officer's decision - The officer did not consider the special personal circumstances of the applicant and accordingly did not exercise his discretion under s. 48(2) of the Immigration and Refugee Protection Act - His findings, in addition to being speculative, ignored the reasons for the delay, the applicant's young age, her culture and her poor state of health - At no time was the applicant's credibility called into question - The officer gave no weight to the applicant's allegation that her application was delayed because of pressure from her in-laws to abandon the criminal proceedings - Regarding a subpoena, although the applicant could not benefit from a statutory stay under s. 50(a) of the Act, a letter from a detective sergeant corroborated the fact that the applicant made a complaint against her father-in-law and raised a fear for her safety should she be sent back to Pakistan - See paragraphs 28 to 41.

Aliens - Topic 4066.1

Practice - Judicial review and appeals - Bars - An enforcement officer denied the applicant a stay of removal until a decision on her application for a pre-removal risk assessment could be made - On judicial review, the Federal Court disagreed with the respondent's argument regarding "unclean hands" or bad faith - Although the applicant failed to report for removal several times, in every case her absence was excused by the medical evidence on record - "In light of the evidence, I cannot find any misconduct or lies on the part of the applicant that would have a negative impact on the integrity of judicial and administrative processes" - See paragraph 28.

Cases Noticed:

Toth v. Minister of Employment and Immigration (1988), 86 N.R. 302 (F.C.A.), refd to. [para. 15].

Hussain v. Canada (Minister of Public Safety and Emergency Preparedness), [2012] F.T.R. Uned. 276; 2012 FC 598, refd to. [para. 15].

Fernandez et al. v. Canada (Minister of Citizenship and Immigration) et al. (2012), 418 F.T.R. 311; 2012 FC 1131, refd to. [para. 17].

Dhurmu v. Canada (Minister of Public Safety and Emergency Preparedness), [2011] F.T.R. Uned. 301; 2011 FC 511, refd to. [para. 17].

Baron et al. v. Canada (Minister of Public Safety and Emergency Preparedness), [2010] 2 F.C.R. 311; 387 N.R. 278; 2009 FCA 81, refd to. [para. 17].

Turay v. Canada (Minister of Public Safety and Emergency Preparedness), [2009] F.T.R. Uned. 710; 2009 FC 1090, refd to. [para. 17].

Ramada v. Canada (Solicitor General), [2005] F.T.R. Uned. 679; 2005 FC 1112, refd to. [para. 18].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 18].

Thanabalasingham v. Canada (Minister of Citizenship and Immigration) (2006), 345 N.R. 388; 2006 FCA 14, appld. [para. 19].

Wang v. Canada (Minister of Citizenship and Immigration) (2001), 204 F.T.R. 5; 2001 FCT 148, refd to. [para. 20].

Ivanov et al. v. Canada (Minister of Citizenship and Immigration), [2002] F.T.R. Uned. 109; 2002 FCT 188, refd to. [para. 20].

Moumaev v. Canada (Minister of Public Safety and Emergency Preparedness) (2007), 315 F.T.R. 124; 2007 FC 718, appld. [paras. 21, 30].

Samaroo v. Canada (Minister of Citizenship and Immigration) (2011), 401 F.T.R. 300; 2011 FC 1460, refd to. [para. 22].

Jamal v. Canada (Minister of Citizenship and Immigration), [2001] F.T.R. Uned. 300; 2001 FCT 494, refd to. [para. 26].

Vargas et al. v. Canada (Minister of Public Safety and Emergency Preparedness) - see Sanabria Vargas et al. v. Canada (Minister of Public Safety and Emergency Preparedness).

Sanabria Vargas et al. v. Canada (Minister of Public Safety and Emergency Preparedness), [2010] F.T.R. Uned. 617; 2010 FC 938, refd to. [para. 26].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 48(2) [para. 29]; sect. 50(a) [para. 37].

Counsel:

Mylène Barrière, for the applicant;

Thomas Cormie, for the respondent.

Solicitors of Record:

Mylène Barrière, Montreal, Quebec, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Montreal, Quebec, for the respondent.

This application was heard at Montreal, Quebec, on December 18, 2012, before Tremblay-Lamer, J., of the Federal Court, who delivered the following reasons for judgment and judgment, dated December 24, 2012, at Ottawa, Ontario.