Bhalru v. Canada (Minister of Citizenship and Immigration), docket IMM-52-00

     Date : 20000112

     Docket : IMM-52-00

BETWEEN:

     DAVINDER PAL BHALRU

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

McGILLIS, J.

[1]      The applicant has applied on an urgent basis to stay his deportation from Canada to India. Given the imminent deportation, time does not permit me to outline in detail all of the evidence adduced on the motion. However, I have carefully read and considered all of the evidence tendered by the parties.

[2]      The applicant arrived in Canada on February 5, 1999, without any identification or travel documents. As a result, he was referred to an immigration officer. During the course of his initial interview with an immigration officer, the applicant made a refugee claim and stated, among other things, that he was a member of the Babbar Khalsa organization from 1995 to 1996. He further stated that he "...would be willing to help the Babbar Khalsa in Canada if it was in a correct and peaceful manner, and to assist the families of the martyred young boys by collecting money". He signed a statutory declaration confirming those statements. Later in the day, he had a second, lengthier interview in which he reiterated his involvement with the Babbar Khalsa.

[3]      Given his statements concerning his involvement with the Babbar Khalsa, the immigration officer found the applicant to be a member of an inadmissible class described in s. 19(1)(f)(iii)(B) of the Immigration Act, R.S.C. 1985, c. I-2, as amended ("Act"), namely a person who there are reasonable grounds to believe is or was a member of "...an organization that there are reasonable grounds to believe is or was engaged in terrorism". The applicant was detained in custody and referred to an inquiry.

[4]      On February 7, 1999, the applicant had another interview and signed a further and more detailed statutory declaration in which he confirmed his involvement in the Babbar Khalsa and stated, among other things, that he was faithful to and believed in its goals.

[5]      On February 16, 1999, an inquiry was held and the applicant testified, among other things, that he had not been a member of the Babbar Khalsa and that he had made such a statement only to "strengthen" his refugee claim. At the conclusion of the hearing, the adjudicator found, on the basis of the evidence, that there were reasonable grounds to believe that the Babbar Khalsa was an organization that has engaged in terrorism. The adjudicator also found that there were reasonable grounds to believe that the applicant is a member of the Babbar Khalsa. In support of his decision, the adjudicator provided detailed reasons for disbelieving the applicant's evidence that he had previously lied to the officers about his involvement in the Babbar Khalsa. Given his conclusion, the adjudicator issued a conditional deportation order against the applicant. At some point in time, the applicant was released from detention.

[6]      On March 10, 1999, the applicant received a letter indicating that the Minister of Citizenship and Immigration ("Minister") intended to consider, under s. 46.01(1)(e)(ii) of the Act , whether "...it would be contrary to the public interest..." to have the applicant's refugee claim determined. The applicant was provided with a copy of the evidence and other materials to be considered by the Minister in arriving at her decision. In response, counsel for the applicant filed lengthy materials and submissions.

[7]      On May 24, 1999, the Minister signed a certificate that it would be contrary to the public interest to have the applicant's refugee claim determined.

[8]      On January 5, 2000, the applicant was arrested and detained for removal from Canada.

[9]      In support of his motion to stay the execution of the removal order, the applicant filed an affidavit in which he stated that he had been involved with the Akali Dal Mann in India and that he had attended a rally in February 1998. He claims, among other things, that the police started hitting people with batons at the rally and two days later showed up at his house looking for him. According to the applicant, it was fortunate for him that he was "in the fields when they came". He further claims to have gone into hiding until the police visited his home a second time ten months later, at which time he decided to leave India. Finally, he claims that the police will arrest and torture him and that he "...may also be killed by the police, as they have killed many innocent men in the past".

[10]      In order to succeed on his motion to stay the execution of the deportation order, the applicant must establish that there is a serious issue to be tried, that he would suffer irreparable harm by reason of his deportation and that the balance of inconvenience lies in his favour.

[11]      Despite the able submissions of the applicant's counsel, I have not been persuaded that the application raises a serious issue to be tried. However, even if I were to conclude that the application raises a serious issue to be tried, I am of the opinion that the applicant has adduced no credible evidence to establish that he would suffer irreparable harm by reason of his deportation to India. In his evidence tendered on this motion, the applicant has based his claim to irreparable harm on his alleged involvement with the Alkali Dal Mann and various activities on the part of the police in India. However, in three separate interviews with different government officials in Canada, in his testimony before the adjudicator and in his written submissions to the Minister, the applicant has never previously disclosed the incidents outlined in his affidavit filed on the motion. In my opinion, the evidence in his affidavit is not credible and should be given no weight. The applicant has therefore failed to adduce any credible evidence that he would suffer irreparable harm by reason of his deportation to India. In the circumstances, it is unnecessary for me to consider the question of the balance of inconvenience.

[12]      The motion to stay the execution of the removal order is dismissed.

OTTAWA

January 12, 2000