Ho v. Canada (Minister of Public Safety and Emergency Preparedness), 2006 FC 1037

 

 

 

Date: 20060829

Docket: IMM-4659-06

Citation: 2006 FC 1037

Toronto, Ontario, August 29, 2006

PRESENT:     The Honourable Mr. Justice Shore

 

BETWEEN:

PHI HUNG HO

Applicant

and

 

THE MINISTER OF PUBLIC SAFETY

AND EMERGENCY PREPAREDNESS

Respondent

 

REASONS FOR ORDER AND ORDER

 

INTRODUCTION

[1]               The Court has heard the applicant’s motion in respect of a stay of his removal pending an application for temporary residency citing humanitarian and compassionate grounds (filed August 18, 2006).

 

BACKGROUND

[2]               The applicant was landed from Vietnam on 28 March 1990. He was sponsored to Canada by his brother in 1990 under a special program for displaced Vietnamese. He was convicted on 27 May 1997 of five offences of robbery and was sentenced to three years imprisonment for each offence. The applicant is a person described in 112(3) of the Immigrant and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) and therefore Section 96 which constitutes the Convention Refugee grounds cannot be considered.

 

ANALYSIS

[3]               The applicant is not a person in need of protection due to a danger of torture, or to a risk to his life of cruel and unusual treatment or punishment (section 97(1)(a) and (b) of IRPA).

 

[4]               The applicant did not identify a risk in his Pre-Removal Risk Assessment (PRRA) application form. He escaped Vietnam because he did not want to live under the Communist government.

 

[5]               The government generally permitted citizens who had emigrated abroad to return to visit. By law the government considers anyone born in the country to be a citizen, even if the person has acquired another country’s citizenship, unless a formal renunciation of citizenship has been approved by the president. However, in practice, the government usually treated overseas Vietnamese as citizens of their adopted country. Emigrants were not permitted to use Vietnamese passports after they acquired other citizenship. The government generally encouraged visits by such persons but sometimes monitored them carefully. (Country Reports on Human Rights Practices, 2005, Vietnam, U.S. Department of Sate, Section 2 d. p. 18.)

 

[6]               Country conditions are far from favourable, however, there is no sufficient evidence that the applicant, himself, would be targeted upon return to Vietnam. The evidence does not indicate that the government or the police are interested in the applicant to date.

 

[7]               Upon the review of all the evidence, the applicant was not considered to be at risk of torture, or personally to a risk to his life or to cruel and unusual treatment or punishment.

 

[8]               Upon a thorough review of all the evidence by the PRRA officer, the applicant was considered less than likely to be at risk of torture upon return to Vietnam.

 

[9]               A warrant for the applicant’s arrest was issued on August 11, 2006 due to an assessment by the officer who delivered the negative PRRA assessment that he would not appear for removal.

 

[10]           In addition, the applicant’s family situation was assessed.

 

[11]           Even if the Court were to assume that the applicant raises a serious issue to be tried, the applicant has failed to adduce sufficient evidence to establish he would suffer irreparable harm by reason of his deportation to Vietnam.

 

[12]           The applicant has not met the third aspect of the tri-partite test, insofar as the balance of convenience favours the respondent and not the applicant.

 

[13]           The balance of any inconvenience which the applicant may suffer as a result of removal from Canada does not outweigh the public interest which the respondent seeks to maintain in the application of IRPA.

 

[14]           In the circumstances, the application must be dismissed.

 

ORDER

 

THIS COURT ORDERS that the application for a stay of removal be dismissed.

 

“Michel M. J. Shore”

FEDERAL COURT

 

NAME OF COUNSEL AND SOLICITORS OF RECORD

 

 

 

DOCKET:                                          IMM-4659-06

 

STYLE OF CAUSE:                          PHI HUNG HO

                                                            v. THE MINISTER OF PUBLIC SAFETY

                                                            AND EMERGENCY PREPAREDNESS

 

 

 

 

PLACE OF HEARING:                    Toronto, Ontario

 

DATE OF HEARING:                      August 28, 2006

 

REASONS FOR ORDER:               SHORE J.

 

DATED:                                             August 29, 2006

 

 

 

APPEARANCES:

 

Ms. Jeinis S. Patel	FOR THE APPLICANT
Mr. Robert Bafaro	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

MAMANN & ASSOCIATES Toronto, Ontario	FOR THE APPLICANT
JOHN H. SIMS, Q.C. Deputy Attorney General of Canada	FOR THE RESPONDENT