Date: 20050816
Docket: IMM-4825-05
Citation: 2005 FC 1118
Ottawa, Ontario, this 16th day of August, 2005
Present: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN
BETWEEN:
JING XIANG TIAN
(Applicant)
and
SOLICITOR GENERAL OF CANADA
(Respondent)
REASONS FOR ORDER
(Delivered orally and subsequently written for clarification and precision)
[1] The Applicant is a citizen of China, who came to Canada as a visitor on October 29, 2002 with his spouse, Juan Wang Tian. Mrs. Tian is a practising Falun Gong practitioner, who successfully claimed refugee status in June, 2005. She applied for permanent residency on July 13, 2005, and included the Applicant and her 23-year-old son, who is currently studying in university in China, in her application.
[2] The Applicant is not a Falun Gong practitioner. He never sought a refugee status.
[3] The Applicant's visitor status expired six months after his arrival to Canada. The Applicant never applied to extend his stay and has remained in Canada illegally.
[4] In December, 2004, the Applicant's Pre-Removal Risk Assessment ("PRRA") was rejected. The PRRA Officer determined that the Applicant would not be subjected to risk of persecution, danger of torture, risk to life or risk of cruel and unusual treatment or punishment if returned to China.
[5] The Applicant did not seek judicial review of the negative PRRA.
[6] On July 22, 2005, the Applicant was served with a Direction to Report. The Applicant is scheduled for removal from Canada on August 15, 2005.
[7] The Applicant has now brought the present motion for an order staying the execution of the removal order. The essence of the Applicant's argument is that he should be allowed to remain in Canada pending the completion of his wife's permanent residency application. He argues that the Removal Officer should have deferred his removal to Chine because his marital relationship may be jeopardized and he may suffer financial hardship.
[8] To succeed in this stay application the Applicant has to satisfy the conjunctive legs prong test of Toth v. Canada (M.E.I.) 6 IMM. L.R.(2d) 123.
[9] As for serious issue, the Applicant argues that the Removal Officer had a duty to consider the impact of the Applicant's removal on his marriage and the likelihood of persecution upon his return to China.
[10] In my view, this vastly exaggerates the very limited responsibility of the Removal Officer. He is basically a scheduling officer. It is not part of his duty to assess risk, he merely has to assure himself that this risk has been assessed. The risk of persecution was assessed in the Applicant's PRRA application which was rejected. The Applicant commenced but did not complete the steps for obtaining leave for judicial review. As for the impact of the removal on his marriage, this is a matter for an H & C application (which the Applicant commenced and abandoned) rather than a matter for the Removal Officer to consider.
[11] Consequently I find the Applicant failed to establish a serious issue.
[12] As for irreparable harm, there is no evidence before me that spouses of Falun Gong members (who find exile abroad) are persecuted in China. There being no affidavit from the Applicant, it is also impossible for me to assess either the economic or the marital impact claimed by the Applicant. Accordingly, I also find that this leg of the Toth test has not been met.
[13] Having failed two of the three conjunctive legs of the Toth test, there is no need to assess the third leg. This application cannot succeed.
ORDER
THIS COURT ORDERS that this application be dismissed.
" Konrad von Finckenstein "
F.C.J.
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