Date:
20071021
Docket:
IMM-4338-07
Citation:
2007 FC 1086
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, October 21, 2007
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
SAID
JAZIRI
Applicant
and
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The applicant is seeking a stay of execution of
his deportation to Tunisia, which is scheduled for October 22, 2007,
pending a decision on his application for leave and for judicial review of the
negative decision of the pre-removal risk assessment officer (PRRA) dated
September 21, 2007.
[2]
First, at the Minister’s request and with the
consent of the applicant, the style of cause will be amended by the addition of
a respondent, the Minister of Public Safety and Emergency Preparedness.
[3]
It is admitted that the applicant must satisfy
the tri-partite test set out in Toth v. Canada (Minister of Employment and Immigration)
(1988), 86 N.R. 302 (F.C.A.): there must be a serious issue to be tried; there
must be irreparable harm if the stay is not granted; and the balance of
convenience must favour the applicant. It is also admitted that the three
elements of the test are conjunctive, meaning that if one of the conditions is
not met, the motion must be dismissed.
1. The
facts
[4]
A summary of the facts is in order, so I shall
reproduce below the chronology of events relating to the applicant’s status
since his arrival in Canada:
February 27,
1997: The applicant arrived in Canada, at Mirabel Airport, and claimed
refugee status.
February 11,
1998: The Immigration and Refugee Board (IRB) granted him Convention refugee
status.
January 7, 1999: He became a permanent
resident of Canada as a Convention refugee.
July 19,
2005: Citizenship and Immigration Canada (CIC), on the basis of
information received about the applicant (which he had concealed at the time of
his claim for refugee protection), filed an application for vacation of his
refugee status with the IRB.
June 22,
2006: The IRB, after several hearings, vacated the applicant’s refugee
status in accordance with section 109 of the Immigration and Refugee
Protection Act, S.C. 2001 c. 27 (IRPA).
At
the same time, pursuant to paragraph 46(1)(d) of the IRPA, the
applicant lost his permanent resident status.
July 10,
2006: The applicant applied for leave for judicial review of the
IRB’s decision to vacate his refugee status.
July 31,
2006: The Canada Border Services Agency (CBSA) issued a deportation
order against the applicant on the basis that he was inadmissible for
misrepresentation within the meaning of paragraph 40(1)(c) of the
IRPA.
August 28,
2006: The applicant filed an application for leave for judicial review of
the deportation order issued by the CBSA.
September 25,
2006: The Federal Court dismissed the application for leave for judicial review
of the IRB’s decision vacating the applicant’s refugee status.
November 8,
2006: The Federal Court dismissed the application for leave for judicial
review of the CBSA’s decision to issue a deportation order against the
applicant.
December 11, 2006: The applicant filed an
application for permanent residence in the spouse or common-law partner class.
February 26,
2007: The CBSA offered him the opportunity to file a PRRA application.
March 15,
2007: The applicant filed his PRRA application.
August 24,
2007: His application for permanent residence was refused because he was
inadmissible under paragraph 40(1)(c) of the IRPA and he could not
become a permanent resident pursuant to subparagraph 72(1)(e)(i) of
the Immigration and Refugee Protection Regulations.
September 21,
2007: A PRRA officer (the officer) rendered a negative decision with respect to
the applicant’s PRRA application.
October 19,
2007: An application for judicial review was filed against the PRRA
application decision.
This
application for a stay of the deportation order based on the application for
judicial review was filed.
2. Analysis
[5]
The applicant’s credibility is strongly
diminished by his major omissions and contradictions before various bodies. The
officer found that the applicant was not credible with respect to material aspects
of his claim for refugee protection. For example, as noted by the officer at
page 6 of his decision dated September 21, 2007:
[translation]
. . . when
applying for refugee status, [the applicant] alleged that he had studied in France from 1988 to 1996 and that he had returned to Tunisia only during the summer vacations
between 1988 and 1991. However, he did not mention his arrest in France in
March 1994 or his return to Tunisia on March 31, 1994. He did not mention
it until the hearing regarding the vacation of his status. He then told the
panel that, during his return to Tunisia in March 1994, he had been
detained, interrogated and tortured for several days. He was allegedly released
by his jailers, who told him that he would be investigated. They allegedly told
him to remain at home and that he would be called. When he returned to his
family, a big celebration was held to welcome him.
The IRB held that [translation] “this very important
omission in the applicant’s initial Information Form and testimony indicates
that he attempted to hide information from the first member who heard his file.”
[Emphasis added.]
[6]
The officer upheld the IRB’s finding that the applicant
had, directly or indirectly, misrepresented material facts. After considering
all of the evidence, the IRB held that the remaining evidence was insufficient
to justify the initial decision and allowed the Minister’s application to
vacate the applicant’s “Convention refugee status”.
[7]
The findings of fact in relation to these
material elements were upheld by the Federal Court on September 25, 2006,
when it dismissed an application for judicial review of the decision vacating
the applicant’s refugee status.
[8]
The applicant filed essentially the same
evidence in support of his PRRA application and raised the same factors on
which he had based his claim for refugee protection on February 27, 1997,
to obtain refugee status.
3. Serious
issue to be tried
[9]
The meaning of the term “serious issue” is drawn
from the decisions of the Supreme Court of Canada in Manitoba (Attorney
General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110, and RJR-MacDonald
Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. Subject to the two
exceptions, which are not applicable in this case, the term “serious issue”
implies that the application is neither frivolous nor vexation. The threshold
is a low one, requiring a preliminary assessment of the merits of the case. Once
persuaded that the application is neither futile nor vexatious, the
applications judge must consider the second and third stages of the test. A
prolonged examination of the merits is neither necessary nor desirable: RJR-MacDonald,
at pages 335, 337 and 338.
[10]
The applicant essentially submits that the
officer erred in his assessment of the facts, particularly with respect to his
[translation] “clean” criminal
record in Tunisia, his incarceration in Tunisia and the conditions of his
subsequent release by the Tunisian authorities.
[11]
I note that all of the factors raised by the
applicant with respect to the serious issue and each document filed by the
applicant were considered and analyzed in detail by the PRRA officer. Moreover,
the PRRA officer carefully explained the basis for his decisions regarding the
weight of the evidence.
[12]
In light of the documentary evidence on Tunisia,
the PRRA officer also examined the applicant’s profile and concluded that his
personal characteristics did not support the profile of an extremist Muslim,
which would have put him at risk with respect to the Tunisian authorities.
[13]
I am satisfied that all of the evidence in the
record was considered by the PRRA officer. Having read the decision as a whole,
I have not been able to identify any error committed by the PRRA officer in his
assessment of the evidence, his findings of fact or his conclusion.
Accordingly, I cannot conclude that Said Jaziri has established a serious issue
to be tried in his application for judicial review.
[14]
Although it is unnecessary to consider the other
two elements of the Toth test, given that the three elements are
conjunctive, I will nevertheless address them briefly.
4. Irreparable
harm
[15]
In this case, the applicant has been found by
three different bodies not to be credible: the IRB on June 22, 2006; the
PRRA officer on September 21, 1997; and the member assigned to his
detention review on October 17, 2007. The facts on which the applicant
based his claim of irreparable harm were not accepted. These findings of lack
of credibility were upheld by the Federal Court. This same evidence cannot be
used to support an argument of irreparable harm in the context of an
application for a stay (Ahyol v. Canada (Minister of Citizenship and Immigration,
[2003] F.C.J. No. 1182 (QL)).
5. Balance of
convenience
[16]
The applicant claims to be a [translation] “model citizen” who does
not represent a risk to Canada. In his view, these are the factors in his
favour with respect to the balance of convenience. Moreover, the applicant
notes that because he is still in detention, he does not represent a flight
risk.
[17]
In my view, these factors are insufficient, in
the circumstances, to swing the balance of convenience in the applicant’s
favour. This is not merely a matter of administrative convenience; it also
involves the integrity and fairness of and public confidence in Canada’s system
of immigration control (Selliah v. MCI, 2004 FCA 261, [2004] F.C.J. 1200
(QL)). Subsection 48(2) of the IRPA states that a removal order must be
enforced as soon as is reasonably practicable.
[18]
I am of the view that the balance of convenience
favours the Minister in this case.
6. Conclusion
[19]
For these reasons the motion will be dismissed.
ORDER
THE
COURT ORDERS that
1. The appeal
is dismissed.
2. The style of cause is amended to add the Minister of
Public Safety and Emergency Preparedness Canada as a respondent.
“Edmond P. Blanchard”
Certified true
translation
Francie Gow, BCL,
LLB
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