Maharaj v. Canada (Minister of Citizenship and Immigration), 2001 FCT 509

Date: 20010518

Docket: IMM-2441-01

Neutral citation: 2001 FCT 509

BETWEEN:

                                   TARRAN MAHARAJ

                                                                                            Applicant

                                                 - and -

   THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                        Respondent

                                REASONS FOR ORDER

DUBÉ J.:

[1]    This application for an urgent and last minute conference call to deal with a stay of deportation was filed on behalf of the applicant on the ground that as a homosexual there is a risk that he may suffer irreparable harm if he is removed to Trinidad, his country of origin.

1. Facts

[2]    The applicant entered Canada on June 10, 1996, as a visitor. He received two extensions which finally expired on March 4, 1998. On July 6, 1998, he was reported under section 27 of the Immigration Act^[1] ("the Act") for having remained in Canada after the expiry of his authorization to remain as a visitor. On that day, he made a claim for Convention refugee status. On October 15, 1998, a conditional departure order was issued against the applicant. The order became effective on August 5, 1999.

[3]    The applicant was deemed not to be a refugee on August 5, 1999. The Immigration and Refugee Board ("the Refugee Division") found that "there is no credible or trustworthy evidence for the panel to make a positive determination that the claimant faces a serious possibility of persecution should he return to Trinidad". The applicant's application for leave against this decision was denied on October 22, 1999.

[4]                The applicant did not submit an application for consideration under the Post Determination Refugee Claimants in Canada Class ("PDRCC"). On December 7, 2000, a warrant was issued for the applicant because he failed to attend for a pre-removal interview on December 6, 2000. A warrant was executed on February 5, 2001. The applicant was released on terms and conditions including to report as directed. However, on March 28, 2001, the applicant again failed to report for a pre-removal interview.

2. Analysis

[5]                A removal officer's jurisdiction under section 48 of the Act is to execute removal orders "as soon as reasonably practicable". The removal officer has some discretion to defer the execution of a removal but cannot be expected to act as a last minute humanitarian and compassionate assessment tribunal^[2]. There is jurisprudence in this Court to the effect that the discretion of a removal officer is very limited and that he may consider various factors such as illness, other impediments to travelling, and pending H & C applications that were brought on a timely basis^[3].

[6]                In the instant case, under the circumstances, there is no indication that the refusal of the removal officer to defer the departure of the applicant was not reasonable. This Court has on numerous occasions emphasized that persons who failed to allege a risk at earlier appropriate junctures cannot expect the removal officer to set aside his travelling arrangements so as to conduct a quick risk assessment before executing the duty imposed upon him by the Act. In my view, a removal officer may only entertain such an application where the alleged risk is obvious, very serious and could not have been raised earlier. Such is not the case here.

3. Disposition

[7]                It follows that the applicant has neither established that there is a serious issue or that he will suffer irreparable harm if he is returned to his country of origin. Thus, this late application for a stay, based on an allegation of risk by the applicant, cannot be granted.

[8]                The application was dismissed at the hearing.

OTTAWA, Ontario

May 18, 2001

                                                                                                   Judge

Date: 20010518

Docket: IMM-2441-01

OTTAWA, ONTARIO, THIS 18^th DAY OF MAY 2001

PRESENT:      THE HONOURABLE MR. JUSTICE J.E. DUBÉ

BETWEEN:

                                   TARRAN MAHARAJ

                                                                                            Applicant

                                                 - and -

   THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                        Respondent

                                               ORDER

Monsieur le juge Dubé a signé l'ordonnance préparée par le greffe. Une copie est au dossier.

                                                                                                   Judge

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: IMM-2441-01

STYLE OF CAUSE:                      TARRAN MAHARAJ v. M.C.I.

PLACES OF HEARING:              Ottawa and Toronto via teleconference DATE OF HEARING:                                      May 18, 2001 REASONS FOR ORDER OF MR. JUSTICE DUBE