Date: 20080403
Docket: IMM-1292-08
Citation: 2008 FC 415
Ottawa, Ontario,
April 3, 2008
PRESENT: The Honourable Mr.
Justice Shore
BETWEEN:
CARLOS
YSRAEL LUCIANO ZABALA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
I. Introduction
[1]
The
Applicant, Mr. Carlos Ysrael Luciano Zabala, a citizen of the Dominican
Republic and a one time permanent resident of the United States (U.S.), arrived
in Canada on December 10, 2007,
using a fraudulent French passport. He expressed his intention to make a
refugee claim in Canada. It came to light
during the Port of Entry (POE) interview to determine his eligibility to make a
claim that he had also been convicted in 1991 in the Commonwealth of Massachusetts, for trafficking in cocaine.
He served for five years in prison and was deported from the U.S. in 1996 after his
release.
[2]
In
his POE interview, the Applicant expressed his desire to look for work as a
cook in order to pay the person who supplied him with the fraudulent passport. He
stated that he did not expect to have difficulty finding work because he speaks
English. The Immigration Officer informed him that he might not be able to
make a claim due to his serious criminality in the U.S. The Officer informed
him that he would be detained for the night and brought before another Immigration
Officer the next day who would determine his eligibility.
[3]
In
her Notes to File, the Officer specified that, although the Applicant expressed
his desire to make a claim, he had also expressed a desire to return to his
country of origin when the matter of eligibility was raised in regard to the
Applicant’s past criminality.
[4]
The
Applicant appeared before another Immigration Officer the next day (December
11, 2007). Although Spanish is his first language, the Applicant declined the
services of an interpreter, telling the Immigration Officer that “he would like
to try in English”. In this interview, the Immigration Officer sought to
confirm the Applicant’s statement the previous day that he would rather go home
than stay in jail until his eligibility to make a claim is determined.
[5]
The Officer
informed the Applicant that due to his criminality, his claim would be “put on
hold” until the impact, if any, of his criminal record on his eligibility is
“clarified.” The Officer stated that the Applicant would be returned to jail to
await an appearance before an immigration judge. The Immigration Officer
informed the Applicant that if the judge finds him eligible, then his claim
would proceed to the Refugee Protection Division (RPD) for a hearing. The
Applicant stated that he would rather go home since the Officer was unable to
tell him exactly how long he would remain in jail.
[6]
In
light of his stated intention to return to the Dominican Republic, the Applicant was
given and signed a form withdrawing his refugee claim on December 11, 2007. On
the same day, a Senior Immigration Officer issued an exclusion order against
him, after a short hearing, as someone inadmissible to Canada because of his serious
criminality.
Pre-Removal Risk
Assessment
[7]
The
Applicant was advised of his right to apply for a Pre-Removal Risk Assessment
(PRRA), which he did on February 7, 2008. He alleged in his PRRA submissions
that he was threatened by a gang-affiliated person who had lent his friend
money. The Applicant alleged that his friend had given him some of the money
but did not disclose the source. He claims his friend fled without re-paying
the loan and that he became the target of the lender’s ire and threats. He alleged
that his threat to report this individual to the police resulted in even more
severe threats, forcing him to go into hiding. Without ever contacting the
police, he fled to Canada. (Motion Record, PRRA
Submissions, p. 21.)
[8]
In a
decision dated February 12, 2008, the PRRA Officer determined the Applicant had
failed to rebut the presumption of state protection. The Officer determined
that the documentary evidence did not support the Applicant’s assertion that repeating
the incident to the police would have been futile due to police corruption and
ineffectiveness. Consequently, the claim for protection was rejected.
II. Issues
[9]
The
Applicant has not met the tri-partite test for an injunction staying his
removal from Canada:
a. The underlying
litigation, does not raise a serious issue;
b. The Applicant has failed
to demonstrate that he will suffer irreparable harm if removed;
c. The balance of
convenience favours the Respondent.
III. Analysis
[10]
The
Supreme Court of Canada has established a tri-partite test for determining
whether interlocutory injunctions should be granted pending a determination of
a case on its merits, namely, (i) whether there is a serious question to be
tried; (ii) whether the litigant who seeks the interlocutory injunction would,
unless the injunction is granted, suffer irreparable harm; and (iii)
where does the balance of convenience lie, in terms of which of the two parties
will suffer the greater harm from the granting or refusal of an interlocutory
injunction pending a decision on the merits. (Toth v. Canada (Minister of
Employment and Immigration) (1988), 86 N.R. 302; RJR-MacDonald Inc. v.
Canada (Attorney General),
[1994] 1 S.C.R. 311.)
[11]
The
requirements of the tripartite test are conjunctive; that is, the Applicant
must satisfy all three branches of the test before this Court can grant a stay
of removal. (Toth, above, RJR-MacDonald, above.)
[12]
The
issuance of a stay is an extraordinary remedy wherein the Applicant needs to
demonstrate “special and compelling circumstances” that would warrant “exceptional
judicial intervention”. (Ikeji v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 573, [2001] F.C.J. No. 885 (QL).)
[13]
The
Applicant has failed to demonstrate “special or compelling” circumstances in
this case that would warrant a judicial stay of removal. The Applicant has
failed to demonstrate any serious issue with respect to either the conduct of
the Immigration Officer or the PRRA Officer’s decisions rejecting his
application for protection.
[14]
In
the alternative, the motion should be dismissed on its merits as not satisfying
the tri-partite test set out in RJR-MacDonald, above.
A. Serious
Issue
(1)
Withdrawal of the Refugee Claim
[15]
There
is no merit to the Applicant’s attempt to blame the POE Immigration Officer for
his decision to withdraw his claim. The Applicant claims that he should have
been allowed the services of an interpreter since English is not his first
language. He states, at paragraph 12 of his affidavit that he was asked to sign
a number of documents, which he did without knowing that he had signed away his
right to make a claim. The Applicant’s assertions are not credible.
[16]
First,
this Applicant’s contention that the absence of an interpreter made it
difficult for him to comprehend what he was doing is unworthy of belief. The
Applicant resided in the U.S. from 1982-1996, the
year he was deported. His claim that he did not understand the exchange that had
occurred between him and the Immigrations Officers.
[17]
It
is also noteworthy that the Applicant stated to two different Officers that he
wanted to leave Canada rather than spend time
in jail while his eligibility was considered. In his December 10, 2007,
interview, the Applicant stated that he would rather go home than remain in
jail.
[18]
In
his December 11, 2007, interview, the Applicant declined the use of an
interpreter because he wanted to try in English. A record of that interview
does not show that the Applicant had any difficulty whatsoever understanding
the officer or officer comprehending what the Applicant had to say. Indeed,
the exchange between the two about the Applicant’s stated desire to not pursue
a refugee claim is instructive:
(Immigration
Officer:)
LAST NIGHT YOU
TOLD THE OFFICER THAT YOU WANTED TO GO HOME. IS THAT TRUE?
(Applicant:)
WHAT IS GOING
OT HAPPEN TO ME?
(Immigration
Officer:)
BECAUSE OF YOUR
CRIMINALITY, YOUR REFUGEE CLAIM WILL BE PUT ON HOLD UNTIL THE ISSUE CONCERINING
YOUR CRIMINALITY IS CLAIRIFIED. IN THE MEANTIME, YOU WILL RETURN TO THE JAIL
AND WAIT FOR SCHEDULING TO SEE THE IMMIGRATION JUDGE. IF A POSITIVE DECISION IS
MADE BY THE JUDGE, YOUR REFUGEE APPLICATION WILL BE PUT FORWARD FOR
CONSIDERATION BY THE IRB.
(Applicant:)
HOW LONG WILL I
STAY IN JAIL?
(Immigration
Officer:)
I HAVE NO IDEA
(Applicant:)
IN THAT CASE I
WILL GO HOME.
[19]
It
was after the above exchange that he was given the withdrawal of claim form,
which he signed. The Applicant had no difficulty knowing or understanding the
nature or significance of the form he signed.
(2) No Error in PRRA
Decision
[20]
The
PRRA Officer’s decision rejecting the claim for protection does not raise a
serious issue. The Officer considered that the documentary evidence did not
support the Applicant’s assertion that police corruption and ineffectiveness
would have resulted in no protection.
[21]
There
is also no merit to the Applicant’s argument that the speed at which his
application was considered raises a serious issue. It is worth remembering that
the Applicant was convicted and jailed on January 28, 2008, for using false
identification to enter Canada and had previously had a cocaine trafficking
conviction which resulted in serving a five year term in prison during the time
when the Applicant was residing in the U.S. Having withdrawn his refugee claim
and in light of his criminal record, there was every indication that he would
remain in detention until his removal.
[22]
Against
backdrop, the processing of his PRRA application was reasonable. The PRRA
Officer’s finding of the Applicant’s failure to rebut the presumption of state protection
is supported by the latter’s own statement that he did not report the alleged
threats on his life to the Dominican authorities or seek protection.
B. Irreparable Harm
[23]
For
the purposes of a stay of removal, “irreparable harm” is a very strict test. It
implies the serious likelihood of jeopardy to the applicant's life or safety.
Irreparable harm is very grave. It must be more than unfortunate hardship,
including breakup or dislocation of family. (Duve v. Canada (Minister of
Citizenship and Immigration), [1996] F.C.J. No. 387 (QL))
[24]
The
evidence in support of harm must be clear and non-speculative. (John v.
Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 915
(QL), Wade v. Canada (Minister of Citizenship and Immigration), [1995]
F.C.J. No. 579 (QL).)
[25]
There
is no clear and convincing evidence of irreparable harm in this case. The
Applicant never sought state protection, as the PRRA Officer properly
determined. Even if his allegation of risk is true, he has failed to show that
the PRRA Officer’s determination, made after consulting the publicly available
country documents, that the Dominican Republic is capable of protecting him, is unreasonable.
[26]
The
Applicant failed to discharge the burden that the jurisprudence, including Ward,
Villafranca, Kadenko, etc, imposes on all those who seek Canada’s protection by failing
to demonstrate that his country of origin is either unwilling or unable to
protect him from the individual whom he alleges was threatening him. The
Applicant, by failing to contact any law enforcement agency for help in the
face of the alleged threats before fleeing to Canada, the PRRA Officer was within her right to
determine that he is neither a Convention refugee nor a person in need of
protection. (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, Canada
(Minister of Employment and Immigration) v. Villafranca, [1992] F.C.J. No.
1189 (F.C.A.) (QL), Kadenko v. Canada (Minister of Citizenship and
Immigration), [1996] F.C.J. No. 1376 (QL).)
[27]
As
for his claim that his removal will render moot his application to re-instate
his refugee claim, the record shows that that application is based on false
statements. It is also recognized that the Applicant resided for fourteen years
in the U.S. during which he was
residing legally therein.
C. Balance of Convenience
[28]
The
public interest is to be taken into account when considering the balance of
convenience and weighing it together with the interests of private litigants. The
balance of any inconvenience that the Applicant might suffer as a result of his
removal from Canada does not outweigh the public interest which the Respondent
Minister seeks to maintain in the application of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (IRPA), specifically, his interest in
executing removal orders as soon as reasonably practicable. (Manitoba
(Attorney General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110; IRPA,
ss. 48(2).)
[29]
The
Federal Court of Appeal has confirmed that the Minister’s obligation to remove
is “not simply a question of administrative convenience, but implicates the
integrity and fairness of, and public confidence in, Canada's system of immigration
control.” (Selliah v. Canada (Minister of Citizenship &
Immigration),
2004 FCA 261, para. 22.)
[30]
The
Applicant has not demonstrated that the balance of convenience favours the
non-application of the law or that his desire to stay in Canada outweighs the public
interest.
IV. Conclusion
[31]
For
all of the above reasons, the Applicant’s motion for a stay of the execution of
the removal from Canada is dismissed.
ORDER
THIS COURT ORDERS that the Applicant’s motion
for a stay of the execution of the removal from Canada be dismissed.
“Michel M.J. Shore”
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