Date: 20050315
Docket: IMM-1625-05
Citation: 2005 FC 375
BETWEEN:
PHILIPPE BOLOMBO
Moving Party
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
de MONTIGNY J.
[1] The moving party, Philippe Bolombo, has filed an emergency motion in the Court for an order staying a removal order to the United States. On March 8, 2005, Mr. Bolombo was informed that his application for a pre-removal risk assessment (PRRA) had been rejected. He was immediately ordered to leave Canada on March 15, 2005, and was held at the Metro West Detention Centre in Toronto pending his departure. He was unable to contact counsel until Friday, March 11, and counsel only read the PRRA officer's decision hours before the hearing of this motion. This motion for a stay, together with an application for leave and for judicial review of the PRRA decision, was filed this Monday, March 14.
[2] The moving party was born in Belgian Congo (now the Democratic Republic of the Congo) on April 14, 1950. He arrived in Canada in 2000. Together with his wife and three of their children, he made a refugee claim based on a fear of persecution because of his political opinions and activities. This claim was rejected by the Immigration and Refugee Board on June 4, 2004, on the ground that he had been part of the regime of the dictator Mobutu and had been involved in war crimes.
[3] His application for leave and for judicial review was dismissed on October 5, 2004, because he was out of time for filing it (his application for an extension of time was dismissed by this Court). It was following this dismissal that he filed his request for a pre-removal risk assessment.
[4] After hearing the oral submissions by counsel for both parties and examining the various documents that they submitted in support of their submissions, I asked counsel for the Department of Citizenship and Immigration to stay the removal order for 24 hours (or until March 16), so that I could deal with this motion to stay with at least some calm.
[5] Both parties agree that the applicable test for determining an application to stay a removal order is the three-stage test set out in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.).
[6] Counsel for the moving party argued that the allegations of involvement in a regime that committed war crimes and crimes against humanity, which were believed by the Immigration and Refugee Board, are extremely serious and have serious consequences for Mr. Bolombo, who will have to live with this stigma for the rest of his days, wherever he may go. The moving party strenuously denies any association with the Mobutu regime, and claims on the contrary that he did everything he could within acceptable limits at the time to oppose the Mobutu regime and defend human rights.
[7] The immigration officer conducting the PRRA properly refused to assess the risk of return on the basis of section 96 of the IRPA, since the moving party cannot avail himself of that provision given that the Board had serious reasons for considering that he had committed a crime against humanity. As was correctly pointed out, this risk assessment cannot be a review of the IRB decision but is intended solely to assess any new developments affecting the risk of return to a country between the time when the IRB decision was made and the date of removal. Consequently, the application for leave and for judicial review of the PRRA decision cannot be used to challenge the IRB's findings; one cannot do indirectly in this Court what cannot be done on a PRRA application.
[8] Counsel for the moving party presented no other argument on the merits of the PRRA decision, so I can only find that no serious issue warranting a stay of the removal order until the application for leave and review of that decision can be disposed of has been raised.
[9] This finding alone would suffice to dispose of this motion for a stay. But there is more. Counsel for the moving party has also failed to show that his client would suffer irreparable harm should he be returned to the United States. And even if he were subsequently to be expelled to his country of origin, it appears from the decision of the immigration officer who did the PRRA that there are no serious reasons to believe that the moving party's life would be threatened, or that he would be at risk of torture or cruel and unusual treatment or punishment. This finding was not challenged in the proceedings before me, and there is nothing that would suggest to me that it is unfounded. As to the fact that he will be separated from his wife and children, that is a consequence inherent in any removal.
[10] Finally, the Minister has an interest in seeing that the IRPA is enforced and that removal orders are executed as rapidly as possible, especially when the moving party has already failed to appear in court and has been convicted of various criminal offences as is the case here. The balance of convenience clearly favours the respondent.
[11] Accordingly, the motion to stay the removal order is dismissed.
"Yves de Montigny"
Judge
Certified true translation
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1625-05
STYLE OF CAUSE: PHILIPPE BOLOMBO v. MINISTER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: March 14, 2005
REASONS FOR ORDER: Mr. Justice de Montigny
DATE OF ORDER: March 15, 2005
APPEARANCES:
Jacques Roy FOR THE MOVING PARTY
Vanita Goela FOR THE RESPONDENT
SOLICITORS OF RECORD:
Jacques Roy FOR THE MOVING PARTY
Toronto, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
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