SHAHKAR AHMAD RAJA Applicant v. THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS, 2020 FC 694

Date: 20200612 Docket: IMM-1087-20 Citation: 2020 FC 694 Ottawa, Ontario, June 12, 2020 PRESENT: The Honourable Mr. Justice Ahmed BETWEEN: SHAHKAR AHMAD RAJA Applicant and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondent ORDER AND REASONS I. Overview [ 1 ] The Applicant brings a motion for a stay of his removal from Canada scheduled for June 19, 2020. The Applicant had initially been set to be removed on April 16, 2020; however, due to the COVID-19 pandemic, the Canada Border Services Agency ( " “CBSA” " ) subsequently cancelled the removal.

At the time, both counsel agreed that the matter should be adjourned until a new date of removal had been set. [ 2 ] For the reasons below, this motion is granted, as I find that the Applicant has met the tri-partite test required for a stay of removal. II. Facts and Underlying Decision [ 3 ] Mr. Shahkar Ahmad Raja (the " “Applicant” " ) is a 29-year-old citizen of Pakistan. The Applicant became a permanent resident of Canada on December 29, 2004, at the age of 12. The Applicant was sponsored by his father, Muzaffer Mahmood Raja ( " “Mr.

Muzaffer” " ), who had obtained permanent residency under the Entrepreneur Class. The Applicant is currently single and resides in Surrey, British Columbia with his widowed mother, his brother, and his sister-in-law. [ 4 ] In March 2012, the Applicant was convicted of possession of cocaine for the purposes of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act , SC 1996, c 19 ( " “ CDSA ” " ). He received an 18-month conditional sentence. On March 19, 2013, an inadmissibility report was prepared against the Applicant for serious criminality pursuant to subsection 36(1) (

a) of the Immigration and Refugee Protection Act , SC 2001, c 27 ( " “ IRPA ” " ). On May 2013, a deportation order was issued against the Applicant, which was appealed to the Immigration Appeal Division ( " “IAD” " ). [ 5 ] On April 9, 2015, the IAD granted a stay of removal with conditions for a period of three years. During the stay period, on September 23, 2016, the Applicant was convicted of robbery, break and enter, using an imitation firearm in the commission of an offence, and unlawful imprisonment. He received a sentence of six years imprisonment .

On December 21, 2016, the IAD cancelled the Applicant’s stay of removal and dismissed the appeal. [ 6 ] In December 2017, the Applicant submitted an application for Pre-Removal Risk Assessment ( " “PRRA” " ). The PRRA application was based on his fear of an organized group of " “land grabbers” " —often referred to as the " “Land Mafia” " —who had previously attempted to kill the Applicant’s father and had threatened him by name. [ 7 ] The PRRA application included three police reports—First Information Reports ( " “FIR” " )—from Pakistan based on complaints made by Mr.

Muzaffer in January 2008, September 2008, and May 2017. The September 2008 FIR identified the perpetrators who had illegally occupied Mr. Muzaffer’s property in Pakistan by way of a fraudulent sale agreement. Although Mr. Muzaffer was eventually able to regain his land in 2012 after a lengthy court proceeding, the Applicant claims that his family continues to be threatened by the " “Land Mafia” " , who are dangerous and connected to corrupt members of the government in Pakistan. In May 2017, Mr. Muzaffer provided a statement to the Pakistani police, detailing threats to his life by the same earlier perpetrators.

He was shot at in the street and at his home. He also received threatening phone calls, in which the Applicant was threatened by name. Mr. Muzaffer passed away in December 2017. [ 8 ] On January 21, 2020, the Applicant’s PRRA application was refused on the ground that the Applicant had not rebutted the presumption of state protection. The Applicant began an application for leave and judicial review on the negative PRRA decision on February 12, 2020. [ 9 ] On March 19, 2020, the Applicant requested a deferral of his removal, initially scheduled for April 16, 2020.

On April 8, 2020, a CBSA officer refused the deferral request. On April 9, 2020, the Applicant filed a motion record for stay of removal. However, as

noted above, the CBSA subsequently cancelled the Applicant’s removal due to the pandemic. At the time, the matter was adjourneduntil a new removal date was set by the CBSA. [10] This matter is now before the Court, as the Applicant is scheduled to be removed on June 19, 2020. III.

Analysis [11] The three-prong test for the grating of a stay is well established: Manitoba (Attorney General) v Metropolitan Stores Ltd., (SCC), [1987] 1 SCR 110 [Metropolitan Stores Ltd]; RJR-MacDonald Inc. v Canada (Attorney General), (SCC), [1994] 1 SCR 311 [RJR-MacDonald]; R v Canadian Broadcasting Corp, 2018 SCC 5 , [2018] 1 SCR 196 [CanadianBroadcasting Corp]; and Toth v Canada (Minister of Employment and Immigration) (1988), (FCA), 86 NR 302(FCA). [12] The Court must determine (1) whether the applicant demonstrates a "“serious question to be tried”", in the sense that the applicationis neither frivolous nor vexatious; (2) whether the applicant will suffer irreparable harm if the stay is refused; and (3) an assessment ofthe balance of convenience to identify the party that would suffer greater harm from the granting or refusal of the stay, pending adecision on the merits (Canadian Broadcasting Corp at para 12).

A. Serious Issue [13] In RJR-MacDonald, the Supreme Court established that the first stage of the test should be determined on an "“extremely limitedreview of the merits”" (RJR-MacDonald at 314).

This Court must also bear in mind that the discretion to defer the removal of a personsubject to an enforceable removal order is limited, and that the standard of review of an enforcement officer’s decision is that ofreasonableness (Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81 , [2010] 2 FCR 311 atpara 67). [14] On this first prong of the tri-partite test, the Applicant submits that the PRRA Officer failed to apply the correct test for stateprotection by requiring a "“complete breakdown of the state apparatus”".

The Applicant argues that the test for state protection is that of"“operational adequacy”", which has been long adopted by this Court (Magonza v Canada (Citizenship and Immigration), 2019 FC 14 at paras 71-75; A.B. v Canada (Citizenship and Immigration), 2018 FC 237 at para 17; Beri v Canada (Citizenshipand Immigration), 2013 FC 854 ). [15] Conversely, the Respondent takes the position that the PRRA Officer’s references to a "“complete breakdown in the stateapparatus”" is not determinative of this case, as the decision must be read as a whole. [16] I have reviewed the parties’ submissions, the PRRA decision, the Applicant’s affidavit in support of his PRRA application, andrelevant country condition documentation.

Given that the usual practice in a stay of removal is to leave the merits of the case to theapplication judge, I find it sufficient to conclude that the Applicant’s arguments raise a serious issue as to whether the PRRA Officererred in applying an incorrect test for state protection, or erred in drawing unreasonable inferences from the evidence. B. Irreparable Harm [17] At the second stage of the test, the Applicant is required to demonstrate that irreparable harm will result if relief is not granted.

Irreparable harm does not refer to the magnitude of the harm; rather, it is a harm that cannot be cured or quantified in monetary terms(RJR-MacDonald at 341). This Court must be satisfied on a balance of probabilities that the harm is not speculative, but does not have tobe satisfied that the harm will occur (Xu v Canada (Minister of Employment and Immigration), [1994] FCJ No 746, 79 FTR 107(FCTD); Horii v Canada, (FCA), [1991] FCJ No 984, [1992] 1 FC 142 (FCA)). [18] In other words, the Applicant must provide a clear evidentiary foundation to establish proof of the level of risk to succeed.

Indeciding what is sufficient to establish proof, the nature and seriousness of the risk must weigh in the balance (Medina Cerrato v Canada(Public Safety and Emergency Preparedness), 2018 FC 1231 [Medina Cerrato] at para 21). [19] As noted by Justice Grammond in Medina Cerrato at paragraph 24, country condition evidence may be particularly helpful inestablishing irreparable harm: The risk of irreparable harm will often be proven through a combination of country condition evidence (such as the reportscontained in the national documentation packages maintained by the Immigration and Refugee Board) and evidence thatproves that the applicant is personally at risk.

Evidence concerning the conditions in a particular country is not useful if itcannot be tied to the situation of the applicant. [20] In the case at bar, the record reveals the prevalence of "“land grabbers”" and the corruption of the police in Pakistan. The January2017 UK Home Office Report is particularly relevant. It notes that "“land disputes are prevalent in rural and urban areas acrossPakistan”", and that "“illegal dispossession of land is reported to be largely committed by influential persons including feudal lords,politicians, government functionaries or heads of large communities”".

The UK Home Office Report specifically mentions individualsor groups known as the "“land mafia”" who take or claim ownership or land, and are known to dispossess true owners through legal orillegal means.

It states, "“Those involved in disputes over land or property in Pakistan may be at risk of persecution or serious harmfrom non-state actors or rogue state actors.”" [21] Moreover, when a person fears persecution or serious harm at the hands of rogue state actors or non-state actors, although avenuesof redress are theoretically available under the law, they may not always provide effective remedy due to the reportedly well-connected"“land grabbers”". The Illegal Dispossession Act of 2004 was passed in an effort to address the issue, but apparently has had little

success according to USAID. [22] Furthermore, as stated in the Human Rights Watch report dated September 2016, police are one of the "“most widely feared,complained against, and least trusted government institutions in Pakistan, lacking a clear system of accountability and plagued bycorruption at the highest levels.” " Additionally, district-level police are often under the control of powerful politicians, wealthylandowners, and other influential members of society. [23] The Immigration and Refugee Board of Canada’s Responses to Information Requests ("“RIR”") also state that police "“are rankedas one of the most corrupt institutions in Pakistan”" and that political interference in the police remains an issue. [24] As noted in the Applicant’s affidavit, the Applicant’s father, Mr.

Muzaffer, has held previous encounters with the land grabberswho illegally occupied his property in Pakistan. There were three police reports filed as a result of such encounters, respectively datedJanuary 31, 2008, September 20, 2008, and May 19, 2017, in which the perpetrators are listed by name. [25] Although Mr. Muzaffer successfully regained his land through legal recourse, the land grabbers continuously sought out to kill orharm Mr. Muzaffer, as evinced in a subsequent police report. In the May 2017 police report, Mr.

Muzaffer provided a statement to thepolice concerning multiple incidents of the land grabbers’ threats to his life. Mr. Muzaffer was shot at in the street and in his own homeby several "“Land Mafia”" men. With continuous calls, the land grabbers also threatened Mr. Muzaffer and his sons by name, includingthat of the Applicant. [26] Therefore, the Applicant and his family’s encounters with the land grabbers are consistent with the dangerous situations that peopleface against the "“land mafia”" in Pakistan. The harm that may befall the Applicant is not merely speculative.

The evidence before meillustrates that even five years after Mr. Muzaffer regained his property through legal recourse, the land grabbers openly threatened thefamily and attempted to kill or seriously harm Mr. Muzaffer. Given the well-connected and corrupt nature of the land grabbers, theevidence establishes on a balance of probabilities that the Applicant will face a serious risk of harm and threat to life in place of his fatherif he were to return to Pakistan. [27] Thus, I find that the Applicant meets the test of irreparable harm. C.

Balance of Convenience [28] The third stage of the test requires an assessment of the balance of convenience—a determination to identify which party will sufferthe greater harm from the granting or refusal of the interlocutory injunction, pending a decision on the merits (RJR-MacDonald at 342;Metropolitan Stores Ltd at 129).

It has sometimes been said, "“Where the Court is satisfied that a serious issue and irreparable harmhave been established, the balance of convenience will flow with the Applicant,”" (Mauricette v Canada (Public Safety and EmergencyPreparedness), 2008 FC 420 at para 48). [29] However, other factors such as the conduct of the applicant, for instance where the applicant has a significant criminal record or ahistory of evading immigration authorities, may strengthen the interest of the state in enforcing the removal (Barre v Canada (PublicSafety and Emergency Preparedness), 2018 FC 783 at para 23).

The Court must consider the public interest to uphold theproper administration of the immigration system.

The balance of convenience has been found to weigh heavily in favour of the Ministerwhere the individual facing removal has been convicted of criminal offences and has been found to be a danger to the public (Mohamed vCanada (Citizenship and Immigration), 2012 FCA 112 at para 34; Tesoro v Canada (Minister of Citizenship and Immigration),2005 FCA 148, [2005] 4 F.C.R. 210 at para 47; Sittampalam v Canada (Minister of Citizenship and Immigration), 2010 FC 562 at paras70-73). [30] Upon reviewing the record and the Applicant’s criminal history, I am persuaded that the balance of convenience favours theApplicant based on country condition evidence and the evidence of the dangerous threats against Mr.

Muzaffer and his family, whichincludes the Applicant. ORDER IN IMM-1087-20 THIS COURT ORDERS that: i. The motion is hereby granted; and ii. The style of cause is amended to reflect the Minister of Public Safety and Emergency Preparedness as the proper Respondent. "Shirzad A." Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-1087-20

STYLE OF CAUSE: SHAHKAR AHMAD RAJA v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: OTTAWA, ONTARIO by teleconference DATE OF HEARING: JUNE 10, 2020 JUDGMENT AND REASONS: AHMED J. DATED: June 12, 2020 APPEARANCES : Aleksandar Stojicevic Mojan Farshchi For The Applicant Edward Burnet For The Respondent SOLICITORS OF RECORD : Maynard Kischer Stojicevic Barristers & Solicitors Toronto, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent