Date:
20121109
Docket: IMM-10878-12
IMM-10399-12
IMM-10874-12
Citation:
2012 FC 1308
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario,
November 9, 2012
PRESENT:
The Honourable Mr. Justice Shore
BETWEEN:
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DURO SILJES
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCY
PREPAREDNESS
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Respondents
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REASONS FOR
ORDER AND ORDER
(Amendment only to the format of
the Order dated October 27, 2012,
to reflect the Reasons for Order
and Order)
[1]
The
applicant is requesting a stay of the removal order scheduled for tomorrow,
Sunday, October 28, 2012, pending final disposition of challenges to three decisions
about him: a
negative decision on his pre-removal risk assessment (hereinafter “the PRRA
officer”), (IMM-10878-12); a negative decision on his application aimed at the
exclusion order made against him (IMM-10399-12); and his application concerning
the refusal to defer his removal (IMM-10874-12).
[2]
After
a conference call on Saturday evening, October 27, 2012, of almost three hours
with counsel for the parties and after having the opportunity to review the
documents submitted in the three separate dockets, the Court has determined
that the applicant has not established a serious question in the three
decisions. Accordingly, the stay requested three respective times, taking into
account the three respective decisions in question, is dismissed.
[3]
The
tripartite and conjunctive tests for granting a stay in these circumstances are
well known. The applicant must demonstrate that
a. there is a
serious question to be tried;
b. he will suffer
irreparable harm if the injunction is not granted; and that
c. the balance of
convenience lies in his favour.
[4]
Since
the applicant has not satisfied the first test, which was to establish that
there is a serious question to be tried with respect to the three respective
decisions, the stay of the removal order is dismissed for the three respective
files.
[5]
Since
the respondent’s statement of neutral facts was not contradicted, the Court
accepts the statement of facts as set out by the respondent:
1. On
September 24, 2012, the applicant arrived in Canada.
2. He asked
permission to be admitted to work in Canada for three to six months. The
applicant did not have a work visa or a letter of employment.
3. It was only
when the immigration officer confronted the applicant with the fact that he did
not have either a visa or a letter of employment that he changed his version to
say that he was coming to Canada to visit. He knew only the nickname of the
person he said he was coming to visit and did not know his address.
4. The Canadian
immigration authorities asked the applicant three times if he feared returning
to Croatia and whether he had come to claim refugee protection. Each time, the
applicant replied in the negative.
5. Following
the immigration officer’s 44 report, the Minister’s delegate issued a removal
order, specifically an exclusion order against the applicant.
6. It was not
until the exclusion order was made that the applicant stated he had come to
Canada to seek refuge.
7. The
applicant was informed that he could request a pre-removal risk assessment
(PRRA).
8. On
October 9, 2012, the applicant filed a PRRA application, claiming that he
feared returning because he had been involved in the armed Serbo-Croatian
conflict on the Serb side, he was of Hungarian ethnicity and his spouse and
their four children were of Roma ethnicity.
9. In support
of his PRRA application, the applicant submitted documents in the Croatian
language.
10. On
October 9, 2012, the applicant asked the enforcement removals officer to
stay his removal administratively until his PRRA application was reviewed.
11. The PRRA
officer issued his decision on October 17, 2012; he never received a
translation of the applicant’s documents.
12. On
October 19, 2012, the PRRA decision was sent to the applicant along with
the date for his removal.
13. On
October 23, 2012, the enforcement officer informed the applicant that his
request for an administrative stay, filed on October 9 and reiterated on
October 23, 2012, was therefore no longer needed.
14. The applicant’s departure is scheduled
for October 28, 2012.
[6]
The
Court is repeating the facts for the purposes of analysis. When he arrived, the
applicant stated that he had come to Canada to work for a period of three to
six months, all without a work visa or a letter of employment.
[7]
Following
this version of his account, the applicant changed his account after being
challenged by the immigration officer where he spoke again, saying that he had
come for a visit to meet a person whom he knew only by his nickname, without
even knowing his name or address.
[8]
In
addition, the applicant was asked three times if he feared returning to
Croatia, to give him the opportunity to claim refugee status; and, despite the
three times, he said that he was not claiming refugee status.
[9]
Accordingly,
the immigration officer issued a 44 report; the Minister’s delegate issued an
expulsion order against the applicant.
[10]
Despite
the applicant’s responses, the applicant was granted the right to file a PRRA
application following an expulsion order issued against him.
[11]
In
his PRRA application, the applicant alleged that he was afraid because the
Croatian authorities had forced him to confess to crimes (stemming from the war
in the context of the armed Serbo-Croatian conflict) so that he would be
incarcerated and killed like two members of his family who died in this way.
[12]
In
addition, he added a third version to his account, i.e. a fear of returning to
Croatia as a Hungarian, a member of a minority group, and also because his
spouse and children are Roma.
[13]
The
Court also notes that the applicant is alleging a medical condition as a result
of stopping some medication, which caused him to be confused when he arrived in
Canada.
[14]
In
the wake of a number of versions of the applicant’s account, what should this
Court believe?
[15]
The
applicant alleges that he experienced a breach of natural justice or even a
breach of procedural fairness because he was not given more time to add
other information to the PRRA file and even says that he should have had an
interview with the PRRA officer.
[16]
The
applicant claims that additional information (included in a supplementary
document that the Court accepted for filing) and a meeting with the PRRA
officer were essential because his interpreter did not have the time required
to add more information to complete the applicant’s file with respect to the
context of the Serbo-Croatian war and his Roma family, as a result of time
difficulties caused by the interpreter, a person in particular to whom the
applicant had confided his account.
[17]
For
the purposes of a stay, adding information concerning a context with respect to
an account may not be added to reinforce or validate a case if a previous
decision-maker did not find the account in itself logically coherent on a
balance of probabilities or credible; in this type of context, the additional
documentation in itself may not support either a serious question to be tried
or irreparable harm, as Justice Marc Nadon found, mutandis mutandi, in Hussain
v Canada [Minister of Citizenship and Immigration] 2000 FCJ 751; and also
as noted in Padda v Canada [Minister of Citizenship and Immigration]
2009 FC 738.
[18]
The
Court’s conclusion is derived from the following findings: the evidence adduced
by the applicant must be clear and obvious; it must not be speculative or based
on probabilities. The Court must be satisfied that (irreparable) harm will
occur if the stay is not granted (see Akyol v Canada [Minister of
Citizenship and Immigration] 2003 FC 931; and Atwal v Canada [Minister
of Citizenship and Immigration] 2004 FCA 427).
[19]
In
Akyol v Canada (already cited), Justice Luc Martineau stated:
[8]
. . . This Court has held that where an applicant’s account was found
not to be credible by the Refugee Division, this account cannot serve as a
basis for an argument supporting irreparable harm in a stay application
[20]
If
there is no serious question or irreparable harm, the balance of convenience
favours removal. It is a matter of the integrity of the immigration system as
well as public confidence in the system. A removal order must be enforced as
soon as is reasonably practicable.
[21]
A
removal decision or a refusal to grant an administrative stay may not serve as
a basis for an appeal from a PRRA officer’s decision; and also, a decision to
remove, deport or refuse an administrative stay is based on the facts for which
the respective officers’ discretion is limited, as counsel for the respondents
argues with regard to the exclusion order and the refusal to defer the removal.
[22]
Therefore,
based on the facts assessed by this Court, including the fresh evidence that
the applicant submitted to this Court, nothing changes the overall picture
expressed through this decision in three parts.
[23]
For
all these reasons, the stays requested respectively are dismissed.
ORDER
THE COURT
ORDERS that
the respective stays requested are dismissed.
“Michel M.J. Shore”
Certified
true translation
Daniela
Guglietta, Translator
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