Date: 20040130
Docket: IMM-286-04
Citation: 2004 FC 152
Ottawa, Ontario, this 30th day of January, 2004
PRESENT: THE HONOURABLE MR. JUSTICE MICHAEL L. PHELAN
BETWEEN:
ALEX RIASCOS TORRES
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION and
THE SOLICITOR GENERAL OF CANADA
Respondents
REASONS FOR ORDER AND ORDER
PHELAN J.
[1] This is an application for an order staying the execution of a deportation order issued against the Applicant to be executed on February 2, 2004.
[2] The Applicant bases this application on a challenge to a Pre-Removal Risk Assessment ("PRRA") dated November 26, 2003.
The Facts
[3] The Applicant, a citizen of Columbia, returned to Columbia in June 1999, having served a nine year sentence in the United States for trafficking in narcotics.
[4] With the assistance of his mother and other family members, the Applicant started a taxi business which was reasonably successful.
[5] He came to Canada in April 2000 as a visitor but some three months later made a refugee claim.
[6] In February 2003, this refugee claim was deemed abandoned and leave to appeal was subsequently denied by this Court.
[7] The Applicant also filed a PRRA application which was firstly denied on May 16, 2003. After filing further submissions for a re-determination, the PRRA application was again refused on November 21, 2003.
[8] The Applicant claimed that he had a well-founded fear for his life on the basis that as a successful business person, he had been subjected to demands from the guerrilla group FARC to pay money ("taxes"). He claimed that having defied FARC, he had been threatened with personal injury and death.
Decision
[9] The Applicant says that:
a) the serious issue is that PRRA decision is not well-reasoned and was patently unreasonable because the officer misappreciated the nature of the threat and lack of state protection;
b) the irreparable harm is the potential loss of his life; and
c) balance of convenience follows from the above.
[10] The Applicant is, in essence, requesting this Court to re-weigh the evidence before the PRRA officer and substitute the Court's assessment of the facts for that of the officer
[11] The PRRA officer did what the UNHCR report, "International protection considerations regarding Columbian asylum-seekers and refugees" cautions should be done:
The report states that it is important that decisions on refugee status of Columbian asylum-seekers be taken based on a thorough analysis of all individual circumstances of the case, such as the applicant's personal profile, family, social and ethnic background, his or her membership of or real/perceived collaboration with a particular social group as well as his or her activities.
[12] The fact that, as suggested by the Applicant, 90% of Columbia refugee claims are approved by the IRB does not lessen the obligation to review each particular situation nor does it suggest that the PRRA officer did not perform the required analysis because the Applicant's claim was rejected.
[13] The PRRA officer's decision shows sufficient degree of analysis and an adequate explanation of the basis for that decision in accordance with the nature of the decision to be made (see Ozdemir v. Canada (Minister of Citizenship and Immigration) 2001 F.C.A. 331 at para. 11).
[14] Therefore, no serious issue has been made out.
[15] Even if a serious issue had been made out, the Applicant did not meet the standard of providing clear, convincing and non-speculative evidence of harm.
[16] The fact of removal does not render the leave or the judicial review moot (see Buchting v. Canada (Minister of Citizenship and Immigration) 2003 FC 953).
[17] If the Applicant had been able to make out the first two requirements for a stay, the balance of convenience would have favoured the Applicant.
[18] Therefore, this application for a stay will be dismissed.
ORDER
THIS COURT ORDERS that:
1. The Solicitor General of Canada is added as a party.
2. The application for an order staying the execution of the deportation order issued against Alex Riascos Torres, to be executed on February 2, 2004 is dismissed.
"Michael L. Phelan"
J.F.C.
Ottawa, Ontario
January 30, 2004
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-286-04
STYLE OF CAUSE: ALEX RIASCOS TORRES
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION and
THE SOLICITOR GENERAL OF CANADA
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Monday, January 26, 2004
REASONS FOR ORDER AND ORDER OF PHELAN J.
DATED: Friday, January 30, 2004
APPEARANCES:
Lisa Winter-Card
FOR APPLICANT
Negar Hashemi
FOR RESPONDENTS
SOLICITORS OF RECORD:
The Law Offices of Lisa Winter-Card
Toronto, Ontario
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENTS
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