Date: 20051005

Docket: IMM-5864-05

Citation: 2005 FC 1365

Ottawa, Ontario, October 5, 2005

PRESENT: THE HONOURABLE MR. JUSTICE BLAIS

BETWEEN:

ABOU ASSLI, ROUFAEL

Applicant

and

MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1]                This an application to stay the removal order issued against the applicant.

SERIOUS ISSUE

[2]                It is important to mention from the outset that the underlying application on which this matter is based is an application for leave to file an application for judicial review against a removal order by Citizenship and Immigration Canada dated September 26, 2005, by Josée Groulx, Immigration Officer, Removals Unit.

[3]                On review of the record, it appears that the document referred to is a notice to appear dated September 19, 2005, asking the applicant to report to the Canadian Border Services Agency on September 26, 2005, as appears from exhibit A attached to the applicant's affidavit.

[4]                The applicant submits in essence that during that interview on September 26, 2005, he informed the immigration officer that he had not reported to the consulate because he was afraid and because he did not need to go there because he already had his passport and did not require any additional travel documents.

[5]                The applicant was apparently detained beginning at that moment and he claims that the procedures were completely improper in that his fingerprints were required and, as he alleges he then learned, that the Lebanese authorities had been contacted by the Canadian government and that he now has a well-founded fear that he would be subjected to cruel and unusual punishment on his return to Lebanon, given that the authorities were now aware of his particular circumstances in Canada.

[6]                This allegation of impropriety on the part of the Canadian authorities is the serious issue alleged by the applicant, even though the application for judicial review regarding the notice to appear is hardly related to that allegation.

[7]                At this stage of the proceedings, the Court must ask whether the applicant has raised a serious issue.

[8]                As alleged by the respondent's counsel, the applicant's refugee claim was dismissed on March 11, 2004, and the removal order came into effect 15 days later, i.e. on or about March 6, 2004. It is therefore by operation of the law that the applicant was subject to a removal order and not because of the decision by the removal officer whose only duty was to carry out the removal order.

[9]                It is clear that the applicant could have left the country at any time before the authorities had begun to enforce the removal order, which only occurs once the person decides not to obey the removal order. It seems clear from the record that the immigration service authorities had to take steps in order to ensure that the country to which they were obliged to remove the applicant would be able to receive him and ensure that all administrative measures were respected.

[10]            Furthermore, it also appears from the pre-removal risk assessment (PRRA) record, like the general record, that the Canadian authorities have always submitted that specific information from the applicant's record would under no circumstances be communicated to the Lebanese authorities but that they must nonetheless contact those authorities to ensure that the removal will be carried out appropriately and that there is no risk of returning to the border

[11]            It seems clear from the applicant's arguments that his fears are based more on speculation than on objective elements.

[12]            The applicant made much of the officer's failure to take into consideration the allegations of risk if he were to return to Lebanon and to that effect the consistent case law of this Court clearly shows that removal officers have a very limited responsibility and that it is not their place to reassess the risk of the applicant's removal, which were already assessed by the pre-removal risk assessment officer. Accordingly, in my opinion, the applicant failed to establish that there is a serious issue to be tried in this matter.

IRREPARABLE HARM

[13]            With respect to the analysis of irreparable harm, the applicant alleges a serious fear of returning to Lebanon, with respect to prison and torture.

[14]            It is important to point out that the allegations of risk if he were to be removed to his country had already been assessed by the Immigration and Refugee Board, which dismissed his claims, as well as the Federal Court, which had dismissed the application for leave and for judicial review. The PRRA officer also dismissed the applicant's arguments regarding risk and the subsequent application for leave and for judicial review was also dismissed.

[15]            The applicant filed some other evidence in support of his allegation of risk, and after carefully reviewing exhibits B and C attached to his affidavit, it appears that we are dealing with a report on the period from January to December 2002, by Amnesty International on Lebanon as well as an article from a Lebanese daily newspaper dated September 24, 2005.

[16]            With respect to the first document, it is a document that was available and could have certainly been filed before the PRRA officer or before the Immigration and Refugee Board since the information is at least three years old; furthermore, this document does not persuade me that the applicant would be at risk if he were to return to Lebanon. With respect to the newspaper article, a review of this article does not add anything new that could establish a danger or a risk that would be personal to the applicant. Accordingly, the applicant failed to establish that he would suffer irreparable harm if he were to be removed to Lebanon.

BALANCE OF CONVENIENCE

[17]            With respect to the balance of convenience, it is clear that the respondent has the obligation to act and to enforce the removal order as soon as it is reasonably practicable.

[18]            Under the circumstances, four months have elapsed since the applicant was sent the information to the effect that his pre-removal risk assessment was negative, which is a long time in the circumstances.

[19]            I thereby find that the balance of convenience clearly favours the respondent.

[20]            Accordingly, the application to stay cannot be allowed.

ORDER

            THE COURT ORDERS THAT:

            The application to stay be dismissed.

"Pierre Blais"

Certified true translation

Kelley A. Harvey, BCL, LLB

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                           IMM-5864-05

STYLE OF CAUSE:                           ABOU ASSLI, ROUFAEL v. MCI

PLACE OF HEARING:                     Heard by conference call at Ottawa, Ontario

DATE OF HEARING:                       October 5, 2005

REASONS:                                         BLAIS J.

DATE OF REASONS:                       October 5, 2005

APPEARANCES:

James Louski                                                                 FOR THE APPLICANT

Sherry Rafai Far                                                                                                                        FOR THE RESPONDENT

SOLICITORS OF RECORD:

James Louski                                                                FOR THE APPLICANT

Montréal, Quebec

John H. Sims, Q.C.                                                       FOR THE RESPONDENT

Deputy Attorney General of Canada

Montréal, Quebec