Date: 20030304
Docket: IMM-1375-03
Neutral Citation: 2003 FCT 265
BETWEEN:
BECHIR BOUSSELMI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
BEAUDRY J.
[1] On March 1, 2003, I dismissed the applicant's motion concerning his application for a stay of execution of his removal order for Tunisia scheduled for March 2, 2003.
[2] This motion was made at the last minute.
[3] After carefully reading the documentation that was sent to me by the parties, and hearing the parties by teleconference, I have reached the conclusion that the motion should be dismissed for the following reasons:
[4] The removal order became executory in this case on December 18, 2000, and this order has never been disputed.
[5] The applicant has been in Canada since 1997 and has never claimed refugee status.
[6] On December 14, 2002, when he was arrested by the police of the Montréal Urban Community, the arrest warrant already issued against him by the immigration office was then executed and he was detained.
[7] On December 23, he was offered a pre-removal risk assessment (PRRA) and it was then, for the first time that he identified any potential risks if he were to return to Tunisia.
[8] An application for judicial review of the PRRA negative decision was filed last February 28. I have made sure to read this negative decision and I am not persuaded that the applicant has serious submissions to make in opposition to this decision (Ayari v. Canada (Minister of Employment and Immigration), 92-T-143, March 12, 1992, Pinard J.).
[9] The applicant therefore does not meet the first test in Toth v. Canada (Minister of Employment and Immigration), [1988] F.C.J. No. 587 (F.C.A.) (QL).
IRREPARABLE HARM
[10] On the one hand, the applicant contends that he will be jailed in Tunisia, since he was previously convicted of an offence or crime in his country. On the other hand, his wife, a Canadian, just gave birth to his son about three months ago and will be separated from him without financial resources and his moral support.
[11] The record indicates to me that these factors were analyzed and carefully considered in the impugned decision.
[12] I am therefore satisfied that the second test has not been met, either.
[13] The balance of convenience therefore tilts in favour of the respondent, in my opinion.
[14] The respondent's counsel asked me to order costs against the applicant, because this application could have been filed well before March 1. The applicant has been in possession of the decision he seeks to challenge since February 17. Respondent's counsel argues that this is a last-minute motion and that the respondent could have made further submissions had the application been filed earlier, and she asks for costs as a dissuasive measure.
[15] To award costs in such matters, there must be exceptional circumstances. In this case, the applicant was in custody and his counsel argued that it was hard for her to obtain the documents and affidavits in support of the motion. Furthermore, the applicant was notified on February 24 that his removal would be executed on March 2.
[16] The motion is dismissed, without costs.
"Michel Beaudry"
Judge
OTTAWA, Ontario
March 4, 2003
Certified true translation
Suzanne Gauthier, C. Tr., LL.L
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
DOCKET: IMM-1375-03
STYLE:
BECHIR BOUSSELMI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Ottawa, Ontario, by teleconference
DATE OF HEARING: March 1, 2003
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE BEAUDRY
DATED: March 4, 2003
APPEARANCES:
Jeannine Landry FOR THE APPLICANT
Christine Bernard FOR THE RESPONDENT
SOLICITORS OF RECORD:
Jeannine Landry FOR THE APPLICANT
Pepper et Ass.
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
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