Date: 20031217
Docket: IMM 9338-03
Citation: 2003 FC 1491
Toronto, Ontario December 17th, 2003
Present: The Honourable Mr. Justice von Finckenstein
BETWEEN:
YOSUUF GABRA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(Delivered orally from the bench and subsequently written
and edited for clarification and precision)
[1] The applicant, an Arab citizen of Israel, testified for the Israeli police in proceedings against two Arab crime families. The testimony resulted in their convictions. As a result, he is under a death threat in Israel. In order to better protect him, the Israeli police furnished him with new identity papers. He went to the US, where he was convicted of a series of crimes and eventually deported back to Israel. With fresh papers, again furnished by Israeli authorities, he came to Canada, allegedly to watch a basketball game. He was arrested at the port of entry.
[2] The Applicant has unsuccessfully sought protection in Canada under s. 97(1)(a) and s. 97(1)(b) of the Immigration and Refugee Protection Act, R.S.C. 2001 c. 27. There was also a negative Pre-Removal Risk Assessment ("PRRA") decision made against him on November 18th, 2003. At his PRRA hearing, two letters from the Israeli police were presented which confirmed that the threat to the applicant's life is real and which requested that he be allowed to stay in Canada. Counsel for the respondent has informed me that the applicant's removal from Canada is imminent. He has applied for a stay of any removal order that either has been or is about to be made. Both sides have asked me to consider the motion at this time, so as to obviate any emergency motion over the Christmas holidays when the actual order will be executed.
[3] These stay motions, of course, are governed by the three-fold test set out in Toth v. Canada (Minister of Employment and Immigration), [1988] 86 N.R. 302 (F.C.A.).
[4] I am of the view that the applicant does not meet the balance of convenience part of the test for following reasons:
- He came to Canada with false identity papers and lied to the immigration officer as to his motives for coming to the country. Only when arrested and the results of a fingerprint test were revealed, did he confess to his true identity and claim to be a person in need of protection;
- By his own admission the applicant committed a number of serious crimes in Israel;
-The IRB record shows that he was convicted in the US, served time in prison there and was deported;
- There are still a series of grave charges outstanding against him in the US, most notably a charge of kidnapping;
-He had the benefit of a full judicial process in Canada , a hearing with counsel before the IRB and a PRRA determination with the submission of additional evidence. However both determinations reached the conclusion that state protection is available to him in Israel;
-He has been incarcerated for more than one year and is presently held in segregation;
-The state of Israel, through its law enforcement agents, has admitted that there are threats against his life in Israel, they have requested that Canada allow him to stay, but they have never stated that they are unable to protect him;
- There is no question that Israel would be prepared to allow him to return should he not succeed in his slim chances of obtaining a successful judicial review of the PRRA determination;
- The case of Suresh v. Canada (M.C.I.) [1999] 4F.C. 206 is not applicable here. In that case there was an issue as to whether or not the Sri Lankan government's promise not to torture the refugee could be trusted. The good faith of the Israeli government in trying to protect the applicant is not in issue here.
[5] In order to obtain the equitable relief that this applicant seeks, he should come before this court with clean hands. As the foregoing points attest, his hands are anything but clean.
[6] At this point in time, due process having been extended to the applicant, the balance of convenience lies with the respondent. There is a need to protect the integrity of the Canadian immigration and refugee system and to dispel any notion that the system can be used as an informal extra-territorial witness protection program by another country.
[7] Accordingly this application for a stay of removal proceedings is hereby dismissed.
ORDER
UPON MOTION dated December 5th, 2003, on behalf of the Applicant, for an Order:
A stay of execution of any Removal Order made or to be made against the Applicant, (as a consequence of the negative PRRA decision of November 18, 2003) under which Order the Applicant is directed to depart from Canada;
THIS COURT ORDERS that this application is dismissed.
"K. von Finckenstein"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-9338-03
STYLE OF CAUSE: YOSUUF GBARA
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: DECEMBER 16, 2003
REASONS FOR ORDER BY: VON FINCKENSTEIN, J.
DATED: DECEMBER 17, 2003
APPEARANCES BY:
Mr. Hart A. Kaminker For the Applicant
Mr. Stephen Jarvis For the Respondent
SOLICITORS OF RECORD:
Kranc & Associates
Barristers & Solicitors
Toronto, Ontario For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada For the Respondent
FEDERAL COURT
Date: 20031217
Docket: IMM-9338-03
BETWEEN:
YOSUUF GBARA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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