Date: 20070605
Docket: IMM-2076-07
Citation: 2007
FC 582
Ottawa, Ontario, June 5, 2007
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
SODIQ
EARL OYINLOYE
Applicant
and
THE
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1]
To reweigh
the evidence would be to depart from the jurisdiction of this Court and usurp
the jurisdiction of the triers of fact who found the narrative of the Applicant
to lack credibility at its very core.
JUDICIAL PROCEDURE
[2]
The Applicant
claims risk in Nigeria based on being bi-sexual. He
seeks a stay of his removal (scheduled for June 7, 2007) based on a challenge
of his Pre-Removal Risk Assessment (PRRA). The alleged risks have already been
dismissed by the Refugee Protection Division (RPD), the Federal Court and the
PRRA officer. The Applicant has not met the tri-partite test.
BACKGROUND
[3]
The
Applicant is a citizen of Nigeria. He came to Canada in January 2004 under a false
identity claiming to be a visitor. He continued to deny his true identity,
insisting that he was an American citizen, even after he was confronted by an
immigration officer. The Applicant did not admit his true identity until after
he was told that he was not going to be admitted to Canada under his false identity. (Affidavit of
Tom Heinze, Exhibit C, p. 1.
[4]
The
Applicant claimed refugee protection at the airport after he admitted his true
identity. He based his claim on vague grounds. He did not make any mention of
his sexual orientation as the basis for his claim until weeks later. The RPD
member who questioned the Applicant about this issue, held that the Applicant
lacked credibility and that his claim is a fabricated story. (Affidavit of Tom
Heinze, Exhibit C, p. 2.)
[5]
The
Federal Court dismissed the application for leave and judicial review of the
RPD’s decision. (Affidavit of Tom Heinze, Exhibit D.)
[6]
The
Applicant based his PRRA application on the very same facts. He did not submit
any evidence of the PRRA officer to allay the credibility concerns that the RPD
had found. (Applicant’s Motion Record, pp. 16-17.)
[7]
The PRRA
officer found that the Applicant does not face risk upon returning to Nigeria. (Applicant’s Motion Record,
pp. 5-10.)
POINTS IN ISSUE
[8]
The
Applicant has not met the tri-partite test as set out in Toth v. Canada (Minister of Employment and
Immigration),
(1988), 86
N.R. 302 (F.A.C.), [1988] F.C.J. No. 587 (QL).
SERIOUS ISSUE
[9]
It is
unclear from the Applicant’s submissions what the serious issue is in this
case. The Applicant has not identified what error has been committed by the
PRRA officer. (Applicant’s Motion Record, p. 36.)
[10]
A PRRA officer’s
decision attracts significant deference. Justice Luc Martineau confirmed in Rajz
v. Canada (Minister of Citizenship and
Immigration),
IMM-5263-03 (15 July 2003),”that the PRRA officer has sole jurisdiction over
the facts. The Court should not enter into re-weighing of evidence.” (Reference
is also made to Gonzalez v. Canada (Minister of Citizenship and Immigration), IMM-3659-03 (30 May 2003).)
[11]
In Iqbal
v. Canada (Minister of Citizenship and
Immigration),
IMM-5646-03 (11 August 2003), the Applicant did not demonstrate a “patently
unreasonable finding of fact” or an error of law and therefore, Justice Michael
Kelen found no serious issue. (Reference is also made to Mekolli v. Canada
(Minister of Citizenship and Immigration), IMM-4974-03 (9 September 2003); Karaman
v. Canada (Minister of Citizenship and
Immigration),
IMM-6676-03 (9 September 2003); Yilmaz v. Canada (Minister of Citizenship
and Immigration), IMM-5609-03; Ahmed v. Canada (Minister of Citizenship and
Immigration),
2003 FCT 706, [2003] F.C.J. No. 928 (QL), at paras. 4-5.)
The PRRA Officer considered
relevant evidence
[12]
The
Applicant failed to meet the burden of providing the officer with sufficient evidence
and now blames the officer for an unfavourable decision. Applicants have the
onus of establishing the facts on which their claim rests. They omit pertinent
information from their written submissions at their peril. (Owusu v. Canada (Minister of Citizenship and
Immigration),
2004 FCA 38, [2004] F.C.J. No. 158 (QL), at para. 8.)
[13]
A
submission that is oblique, cursory and obscure does not impose a positive
obligation on the officer to inquire further about an issue relied on by an
applicant. (Owusu, above, at para. 9.)
[14]
The
officer considered the totality of documents submitted by the Applicant which
included his PRRA application form with attached documentation, the decision of
the Refugee Protection Board, and the US Department of State Country Reports on
Human Rights Practices – Nigeria 2006 and 2003. (Applicant’s Motion Record, pp.
5-10.)
[15]
The
reasons given by the PRRA officer adequately explain the basis of her decision
and no serious issue is raised in this regard.
IRREPARABLE HARM
[16]
The
Applicant has failed to show in a clear and non-speculative manner that his
deportation would cause more than mere hardship and inconvenience. There is no
persuasive evidence as to what will happen to the Applicant upon return to Nigeria. Being removed from Canada, in itself, as a result of
being illegally in Canada is not irreparable harm. (Syntex
Inc. v. Novopharm Ltd., (1991), 36 C.P.R. (3d) 129; Imperial Chemical
Industries PLC v. Apotex, Inc., [1990] 1 F.C. 221, [1990]
F.C.J. No. 950 (QL).)
[17]
When
assessing the Applicant’s evidence of irreparable harm for the purposes of the within
stay motion, the RPD’s credibility findings are relevant to whether the
Applicant has established credible evidence of irreparable harm. The RPD found
that the Applicant’s claim is not credible. (Affidavit of Tom Heinze, Exhibit
C.)
[18]
As Justice
Marc Nadon stated in Saibu v. Canada (Minister of Citizenship and
Immigration),
2002 FCT 103, [2002] F.C.J. No. 151 (QL):
[11] …The Refugee Board
concluded against the Applicant on his refugee claim and his leave application
to this Court was dismissed. In his affidavit, the Applicant puts forth the
story which was before the Refugee Board. That story, as I have already
indicated, was found not to be credible. Hence, it cannot serve here as a basis
for an argument supporting irreparable harm.
(Reference is also made to Hussain v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 751 (QL), at para. 12; Akyol
v. Canada (Minister of Citizenship and
Immigration),
2003 FC 931, [2003] F.C.J. No. 1182 (QL), at para. 9; Rajz, above.)
[19]
The
Applicant has not met the second part of the tri-partite test, namely,
demonstrable proof of irreparable harm.
BALANCE OF CONVENIENCE
[20]
Subsection
48(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(IRPA), provides that an enforceable removal order must be enforced as soon as
is reasonably practicable.
[21]
The
Applicant seeks extraordinary equitable relief. It is trite law that the public
interest must be taken into consideration when evaluating this last criterion.
In order to demonstrate that the balance of convenience favours the Applicant,
the latter should demonstrate that there is a public interest not to remove him
as scheduled. (RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311; Blum
v. Canada (Minister of Citizenship and Immigration), (1994) 90 F.T.R. 54,
[1994] F.C.J. No. 1990 (QL).)
[22]
The
Applicant has not demonstrated that the balance of convenience favours the
non-application of the law nor outweigh the public interest.
CONCLUSION
[23]
For all of
the above reasons, the Motion for the stay of removal is dismissed.
ORDER
THIS COURT ORDERS that motion for the stay of
removal be dismissed.
“Michel M.J. Shore”
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