Adel v. Canada (Citizenship and Immigration), 2001 FCT 1017

                                                                                                                                            Date: 20010913

                                                                                                                               Docket: IMM-2736-01

Neutral Citation: 2001 FCT 1017

BETWEEN:

AMR ADEL

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

(Rendered orally in Ottawa, July 30, 2001)

PELLETIER J.

[1]         At the conclusion of the hearing on this application, I dismissed the application for a stay for reasons which I gave orally. These oral reasons are repeated in what follows and supplemented by the inclusion of the facts and other points that were the subject of discussion during the hearing, matters which were not included in the reasons I gave at the hearing.

[2]         Mr. Adel is a citizen of Egypt who has been living in the United States since 1999. He holds a work permit and a visa which enable him to live and work in the United States. He says he is employed with a salary of US$80,000 per year. For reasons which are not obvious, on May 18, 2001, he crossed the Canadian border on his way to Dorval Airport where he met a friend, Nasser Elbrolosy. Mr. Elbrolosy does not have a U.S. visa. On the same day, the two men reported at the U.S. border and declared themselves American citizens. Mr. Adel presented his driver's licence from the State of Illinois as proof of citizenship. The result of this was simply to arouse suspicions in the U.S. immigration service. If the two travellers were surprised by this reaction, they were surely the only ones. The two were refused entry to the United States, and in addition Mr. Adel was charged with attempting to bring people illegally into the United States, a charge on which he is to appear in Buffalo on July 31, 2001.

[3]         Sent back to the Canadian border, Mr. Adel was questioned by an immigration officer, Ann Joly. During this discussion, the topic of refugee status was raised. Here is what Ms. Joly says on the matter:

[Translation] Mr. Adel acknowledged the errors he committed. He was also very cooperative during the interview. He tried to find out the possible ways in which he would be able to stay in America. However, he has no family or friends in Canada. His links with Canada are virtually nil. In desperation, he considered claiming refugee status in Canada. The possible consequences of such action were explained to him. Moreover, he stated that his life was not in any danger in Egypt, although possibly his career was. So he does not want to claim. He is thinking of filing a PRA [permanent residence application] for Canada upon his return from Egypt, although his intention is clearly to return to the United States.

[4]         Mr. Adel, for his part, says he did claim refugee status but that his claim was not taken seriously. He points to the passage quoted above and comments that there would have been no reason to talk about refugee status if he had not raised the subject.

[5]         In any event, at the conclusion of the interrogation, officer Joly recommended to the senior immigration officer that an exclusion order be issued in regard to Mr. Adel and that he be placed in custody.

[6]         On May 20, 2001, the senior officer, Mélanie Laroche, adopted Ms. Joly's recommendations and issued an exclusion order and an order that he be placed in custody. On May 22, 2001, Mr. Adel completed the Notification of Claim to be a Convention Refugee. The Refugee Division determined that as a result of the exclusion order issued on May 20, 2001, it had no jurisdiction to deal with his claim. He filed an application for leave and for judicial review of this decision on June 9, 2001, having earlier, on June 1, 2001, filed an application for leave and for judicial review of the exclusion order issued against him.

[7]         Mr. Adel was released on May 27, 2001 and went to Montréal. There, he met with "[Translation] a marvellous young woman", a Canadian citizen who, in his opinion, is "the ideal wife". She likewise found him to her taste and they were married in Montréal on July 20, 2001. Meanwhile, on July 9, 2001, the investigations and removals service of the Department of Citizenship and Immigration notified Mr. Adel that he was to leave Canada for Egypt on July 30, 2001. His solicitor did not manage to file an application for a stay of execution of the removal order until the morning of July 30, 2001 owing to vacations and certain other delays in the preparation of the records. The hearing was held that same day, at 3:30 p.m. Mr. Adel was required to be at Dorval airport at 6:15 p.m. that day.

[8]         A central issue in the application for a stay is the risk of inhuman treatment awaiting Mr. Adel should he return to Egypt. According to his account, when he was an engineering student at Cairo university, he was one of the founders of a student movement bearing the name "The Engineering Political Group", which contested elections for a position in the leadership of the student union. The authorities took a dim view of their progressive program and, following their electoral victory, the founders were arrested and tortured by the national security service. This continued for two years, during which Mr. Adel was arrested and beaten several times, experiences which convinced him that he would be better off leaving Egypt. He obtained an Egyptian passport and a visitor's visa to the United States. In June 1999, he went to America where he immediately began looking for a job. His superior skills got him a job and with the sponsorship of his employer he obtained a work permit, which was granted to him on March 17, 2000.

[9]         In April 2000, his father underwent surgery for a prostate problem. Mr. Adel thought he should visit his father. He reported to the Egyptian consulate in New York City to have his passport's expiry date extended to April 30, 2000. Mr. Adel says that upon his arrival in Cairo on April 14 or 15, 2001, he was met by the civilian authorities who turned him over to the national security service. He was held for three days, during which he was interrogated about his former friends and their movement. He was accused of collecting money abroad on behalf of this movement. He was beaten when he said he had not maintained his links with his former friends after his departure from Egypt. When released, he went to his parents' home. He says he was afraid to go out. On April 28, 2001, he tried to leave Egypt but was arrested at the airport and prohibited from leaving. He returned home and thanks to the intervention of his father, a former soldier, he returned to the United States on April 30, 2000.

[10]       Upon his return to the United States, he became a full-time employee of the International Leadership University. He became the owner of a house and a car. He had a girl friend and was about to get married. Life was good until the moment he went to Dorval to meet his friend Nasser.

[11]       The application for a stay is based on the fact that Mr. Adel did indeed make an application for refugee status during his interrogation by Ms. Joly, an application she ignored. Mr. Adel disputes that a border inspector can limit the field of discussion of refugee status by asking a claimant if he risks death by returning to his country of origin. But more fundamentally, he states under oath that he claimed refugee status before the exclusion order was issued against him and that consequently the Refugee Division has jurisdiction to hear his claim. Mr. Adel says he fears imprisonment and torture if he has to go back to Egypt. He alleges that he will be met once more by elements in the national security service and that he will not come out of it as easily as he did the last time.

[12]       The respondent did not have time to prepare its own affidavits but relies on the notes of the two immigration officers which are reproduced in Mr. Adel's file. The respondent points out that Ms. Joly's notes clearly state: "So he does not want to claim." The minister further states that Mr. Adel lacks credibility, for he voluntarily returned to Egypt in April 2000. Furthermore, Mr. Adel lived in the United States for two years without claiming refugee status there. That is incompatible with a genuine fear of persecution. Finally, the respondent wonders aloud how Mr. Adel, who said he was preparing to marry in the United States, could so suddenly get married in Canada, especially when he was subject to an exclusion order.

[13]       The respondent argues that Mr. Adel's application should not be heard, given that he knew as early as July 9, 2001 that he would have to leave on July 30, 2001. It is unreasonable, the respondent says, to wait until the last minute to initiate an application for a stay when it was possible to file the application in such time as to allow the respondent to reply in a more adequate way.

[14]       Counsel for the respondent invites the Court to apply the decision of Mr. Justice Strayer in Vaccarino v. Canada, [1992] F.C.J. no. 518, which was followed by Mr. Justice Blanchard in Carling v. Canada, [2000] F.C.J. no. 2086. These two judgments point to the possibility that a judge would refuse to hear an application for a stay that is filed at the last minute without valid reason.

[15]       Mr. Adel's counsel says she could not bring these proceedings earlier since she was still awaiting the notes of the immigration officers before preparing her record for the application for a stay. Furthermore, the summer vacations and the fact that she is a sole practitioner meant that she was unable to spend time on the case until the week before the date of removal.

[16]       It often happens that counsel who represent immigrants are themselves consulted at the last minute by clients who live in hope that the removal date will never arrive. Moreover, the Federal Court frequently sees cases in which there is very little time between the applicant's summons and the date of removal. What this means is that often the choice of the hearing date for such applications is outside the control of applicants' counsel. But there are other cases in which counsel know in advance that they will have to make an application for a stay. In those cases, the Court has a hard time understanding why the application for a stay is tendered on the day before the date of removal or on the very day itself.

[17]       This does not do justice to either the respondent or the Court, both of whom must comply with the applicant's deadlines. The respondent is often unable to file its evidence in Court. The Court, for its part, must determine complex questions on the basis of an incomplete record and without the benefit of any period of reflection. The applicant claims a stay by appealing to fairness; he should grant to others what he is claiming for himself. And in this instance, fairness required that the application be presented earlier. It is surprising to me that one can have sufficient information to commence an application for leave and judicial review but be in ignorance about an application for a stay.

[18]       But if Mr. Adel's application is not heard, the result will be that an applicant who says he fears inhuman treatment in Egypt will be removed without any assessment of his situation. Notwithstanding the delays in the proceedings, the Court has chosen to hear him.

[19]       The three prongs of the test for granting an order to stay are well known: a serious question to be decided, irreparable harm to the applicant if the application is not granted, and the balance of inconvenience must favour the applicant. In the case at bar, the serious question, namely, "Did the applicant claim refugee status before the exclusion order was issued against him?", is a straightforward question of credibility. The applicant says yes, the immigration officer's notes say no, and there is no affidavit by the immigration officer. Similarly, the existence of irreparable harm is basically a question of credibility. The applicant's counsel claims that it is not for the judge hearing an application for a stay to launch into an assessment of credibility. That complex task, with its serious consequences, is reserved for the Refugee Division.

[20]       Counsel for the Minister argues that the applicant lacks credibility and says the cases hold that a judge deciding an application for a stay is entitled to review the issue of credibility.

[21]       When an application to stay an exclusion order is presented at the last minute, as in the instant case, certain facts must be taken into consideration. The first is that the Court may very well refuse to hear the application for the reasons set out in the Vaccarino decision, followed by Blanchard J. in Carling, supra. But if the Court is persuaded that it should hear the case, that does not mean that everything will happen in the usual way. The applicant still has the burden of satisfying the Court that he is entitled to the order he is seeking. In this instance, the burden is eased if the applicant is credible. Generally speaking, the judge hearing an application to stay is not, considering the state of the record, in a position to determine issues of credibility. But when the judge agrees to hear an application to stay on the ground that there was no assessment of the risk of return, and that the risk of return is based solely on the applicant's allegations, the judge must be satisfied that there is reason for concern about the fate of the applicant. The fact that there are others who would perhaps be in a better position to assess the applicant's situation does not mean that the judge hearing the application for a stay must accept everything that he is told without exercising his critical faculties.

[22]       A quick search during a break in the course of the hearing of this case discloses five judgments in which the judge decided an application for a stay on the basis of an assessment of credibility. In Nayci v. Canada, [1995] F.C.J. No. 1741, the applicant reported at the Canadian border, saying he was a visitor, but ended up admitting during his examination that he was trying to settle in Canada. He said there was no reason why he could not return to Turkey. Later, in an affidavit submitted in support of an application to stay, the same claimant, with the assistance of an "immigration consultant", said he still intended to claim refugee status, given that he was a member of a persecuted minority. Mr. Justice Muldoon rejected the second "story" and dismissed the application for a stay.

[23]       Some improbabilities in an affidavit filed in support of an application to stay created sufficient doubt in the mind of Mr. Justice Lutfy for him to dismiss the application, in Palencik v. Canada, [1997] F.C.J. No. 1138. In Desorgues v. Canada, [1999] F.C.J. No. 157, Mr. Justice Pinard found there was an absence of trustworthy evidence in support of an application by a national of Algeria. In Shaikh v. Canada, [1998] F.C.J. No. 87, Mr. Justice Nadon said he was prepared to dismiss the application to stay in question when he found that the applicant had tried to mislead the Court by filing a false affidavit. And Mr. Justice Lemieux, in Dovgan v. Canada, [1999] F.C.J. No. 789, dismissed an application to stay a removal order, saying the conduct of the applicant tarnished his credibility to the point that he found no serious question to be decided in the application.

[24]       The conclusion which follows from these reasons is that the Court is in a position to decide questions of credibility, even in the context of an application to stay a removal order. However, the Court must exercise prudence and maintain a certain reserve in regard to questions of credibility in such applications for a stay, when the opportunities for a careful analysis of the evidence are so frequently lacking. But when the evidence before the Court gives rise to some serious questions of credibility, the Court should not ignore the possibility of bad faith solely on the ground that others would be in a better position to assess credibility. The burden on the applicant includes that of filing trustworthy evidence with the Court.

[25]       An analysis of the record in the case at bar leads to the conclusion that the evidence submitted is not trustworthy. As the respondent's counsel notes, the fact that the applicant stayed in the United States for more than a year without claiming refugee status undermines his credibility. The fact that the applicant voluntarily returned to Egypt in April 2000 is inconsistent with a fear of persecution. The applicant's marriage to a Canadian citizen whom he had known for barely two months, 11 days before the date scheduled for his return, in itself raises some questions, but when we add to that the fact that, during his questioning at the border, he had said he was about to marry an American, one can only wonder whether this marriage is bona fide.

[26]       A review of the applicant's travel documents raises further doubts. In his affidavit, the applicant tells of how he was arrested and mistreated for three days at the beginning of his stay in Egypt in April 2000, and that consequently, he took refuge with his parents and was afraid to leave the house. But in the applicant's passport there is a visa issued by the American Consulate in Cairo on April 23, 2000. The applicant would have had to leave home to obtain that visa. Furthermore, the applicant's passport shows that its expiry date was extended to December 31, 2000 by endorsement in Cairo on April 19, 2000. The applicant would have had to report to the authorities to obtain such an endorsement. Those authorities would be ill disposed to grant him his request given the interest the Security Service had in him. The applicant, who was present at the hearing of his case, explained this by saying that it all happened on account of the intervention of his father.

[27]       In all of the circumstances, this explanation is not sufficient. Given all of the facts, it seems to me that the applicant provided a better explanation of his situation when he talked to the immigration officer about making an application for permanent residence once he returned to Egypt than he did in this story he filed in support of his application to stay.

[28]       Given that the serious question to be decided and the irreparable harm both depend solely on the applicant's credibility, and given the applicant's lack of credibility, the test for granting a stay has not been satisfied. The application for a stay must be dismissed.

[29]       For these reasons, the application to stay is dismissed.

                     "J.D. Denis Pelletier"

                                     J.

Ottawa, Ontario

September 13, 2001

Certified true translation

Suzanne M. Gauthier, LL.L., Trad. a.

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET NO:                          IMM-2736-01

STYLE:                                       AMR ADEL v. MCI

PLACE OF HEARING:            Ottawa, Ontario and Montréal, Quebec

by teleconference

DATE OF HEARING: July 30, 2001

REASONS FOR ORDER OF PELLETIER J.

DATED:                                     September 13, 2001

APPEARANCES:

Jeannine Landry                                                                 FOR THE APPLICANT

Michel Pépin                                                                      FOR THE RESPONDENT

SOLICITORS OF RECORD:

Jeannine Landry                                                                 FOR THE APPLICANT

Montréal, Quebec

Morris Rosenberg                                                              FOR THE RESPONDENT

Deputy Attorney General of Canada