Date: 20050321
Docket: IMM-1718-05
Citation: 2005 FC 394
BETWEEN:
DUNG TRAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
de MONTIGNY J.
[1] The Applicant, Mr. Dung Tran, seeks a stay of execution of the removal order now being scheduled for March 22, 2005, pending final determination of his application for leave and judicial review of the Pre-Removal Risk Assessment (PRRA) rejecting his claim that he would be at risk if removed to his country of nationality.
[2] The underlying application for leave in this matter also challenges the Direction to Report for Removal on March 22, 2005. This is not a decision or order, as contemplated in s. 18.1(2) of the Federal Court Act, and it is thus not reviewable by way of an application for judicial review. Indeed, it appears that the Applicant never asked the expulsion officer for deferral of his removal, nor did he ask for a deferral from the Escort Officer who served the Direction to Report. As a consequence, this motion requesting a stay of the removal order will proceed on the basis that the underlying application for judicial review is only challenging the PRRA decision. For that reason, there will be no need to add the Solicitor General of Canada as respondent.
[3] The Applicant was born in Vietnam on January 28, 1961. He joined the Vietnamese army in 1979 but later deserted in 1983 because he did not like the Vietnamese military fighting with the Cambodians. He arrived in Canada and was granted permanent residence status on January 9, 1985.
[4] Between 1990 and 2001, the Applicant has committed numerous serious criminal offences (robbery, aggravated assault, possession of a scheduled substance under s. 4(1) of the Controlled Drugs and Substances Act). On May 16, 1994 he was issued a conditional deportation order based on his criminal convictions in Canada. At the same time he initiated a claim to Convention Refugee status. His refugee claim was rejected on 29 May 1995. The applicant appealed the removal order and applied for judicial review of the CRDD decision, but both decisions were upheld. The applicant's applications for permanent residence under the family class, independent, and post-determination-refugee-claim-in-Canada categories were also unsuccessful.
[5] The various offences for which he has been convicted restrict the assessment of risk to section 97(1)(a) and (b) of the Immigration and Refugee Protection Act, according to s. 112(3)(b) and 113(d) of that same Act. The Applicant essentially contends, as he did in his PRRA application, that he would be at risk of execution for deserting the Vietnamese army in 1983, or that he would be subjected to torture or cruel and unusual treatment or punishment at the very least.
[6] Having heard counsels by way of teleconference on March 18, 2005, and having carefully considered written submissions and motion records, I have come to the conclusion that the application for a stay of removal should be dismissed. In reaching this conclusion, I am governed by the tripartite test for granting a stay as set out by the Supreme Court of Canada in R.J.R. MacDonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. 311, and by the Federal Court of Appeal in Toth v. M.E.I., (1988) 86 N.R. 302. As a result, three questions have to be answered: 1) Is there a serious question to be tried; 2) Has the litigant seeking the stay demonstrated that he would suffer irreparable harm if the stay is not granted; and 3) Which of the two parties would suffer the greater harm from the granting or refusal of the stay pending a decision on the merits of the underlying application.
[7] While an applicant for a stay need only meet a low threshold to establish a "serious issue", an issue still has to be raised. Beyond resubmitting the same arguments that were rejected by the PRRA Officer, counsel for the Applicant raised only one issue: he contended that the Applicant being stateless, he will not be treated as a citizen in Vietnam and will as a consequence find himself in a very precarious and disadvantageous situation.
[8] There has been no attempt to demonstrate that the Applicant has lost his Vietnamese citizenship, nor any explanation given to further this claim. Since the Vietnamese authorities have provided the Canada Border Services Agency with valid travel documents and have given permission to the Applicant to land in Vietnam, I must presume that he will not be regarded as stateless and that the Vietnamese authorities do consider him as one of their nationals. The PRRA Officer came to that same conclusion, after referring to s. 49 of Vietnam's Constitution and the Law on Nationality of Vietnam, which states that nationality is granted automatically by birth either through inheriting it from one parent of by being born in the territory. There is no evidence that the recording of "stateless" on his record of landing amounts to stripping him of his citizenship.
[9] Moreover, the Applicant has not been able to convince me that he will suffer irreparable harm if he is removed to Vietnam. This Court has repeated time and again that irreparable harm must not be speculative nor can it be based on a series of possibilities. The Court must be satisfied that the irreparable harm will occur if the stay is not granted (Selliah v. Canada (M.C.I.), 2004 FCA 261; Akyol v. Canada (M.C.I.), 2003 FC 931; Atakora v. Canada (M.E.I.), [1993] F.C.J. no. 826). The alleged risks were considered by the Refugee Board and the PRAA Officer, and were rejected.
[10] The Applicant has also argued that his removal will have serious repercussions for his family (wife and seven children) that will be left behind. Deplorable as it may be, this kind of hardship typically occasioned by removal cannot constitute irreparable harm for the purpose of the Toth tripartite test, otherwise stays would have to be granted in most cases.
[11] Finally, the Applicant also submitted that he will be eligible for pardon in 2006, and that sponsorship for Canadian residency by his Canadian wife would proceed more quickly if he was to remain in Canada than if he is removed to Vietnam. Again, this type of inconvenience does not amount to irreparable harm for the purpose of the Toth test.
[12] For all these reasons, this application for a stay of removal is dismissed.
(s) "Yves de Montigny"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1718-05
STYLE OF CAUSE: DUNG TRAN v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: MARCH 18, 2005
REASONS FOR ORDER: THE HONOURABLE MR. JUSTICE de MONTIGNY
DATED: MARCH 21, 2005
APPEARANCES:
Mr. John Welton FOR THE APPLICANT
Mr. Tamrat Gebeyehu FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. John Welton
Toronto, Ontario FOR THE APPLICANT
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT
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