Date:
20080819
Docket:
IMM-3592-08
Citation:
2008 FC 958
Ottawa, Ontario, August 19, 2008
PRESENT: The Honourable Mr. Justice
Blanchard
BETWEEN:
KARIM
MAJERBI
Applicant
and
SOLICITOR
GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1]
The applicant is requesting a stay of
enforcement of the removal order against him to Tunisia, which takes effect on August 21, 2008.
[2]
The motion for a stay is accompanied by an
application for leave and judicial review of a negative decision by the pre-removal
risk assessment officer (PRRA), Martine Beaulac, dated June 10, 2008.
[3]
To succeed, the applicant must demonstrate that
there is a serious issue to be tried in the application for leave and judicial
review; that he will suffer irreparable harm if he is deported to Tunisia; and
that the balance of convenience lies in his favour (Toth v. Canada (Minister
of Employment and Immigration) (1988), 6 Imm. L.R. (2d) 123, 86 N.R. 302 (F.C.A.).
These three tests are conjunctive.
[4]
At the respondent’s request and with the
applicant’s consent, the style of cause is amended to show the Minister of
Citizenship and Immigration as the sole respondent in the originating Notice of
Application.
[5]
Since his arrival in Canada in 1999, the applicant has been convicted of various offences under
the Criminal Code. Inter alia:
|
(1) April 24, 2000:
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Breaking and
entering a place other than a dwelling house located at 1626 St-Laurent,
Montréal, and theft; file 500-01-5217-002;
|
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(2) May 9, 2000:
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Failure to comply
with an undertaking, an offence punishable on summary conviction under
section 145(3)(b) of the Criminal Code;
|
|
(3) Nov. 30, 2000:
|
Convicted of
unlawfully entering a business to break and enter on April 24, 2000, at
1626 St‑Laurent, Montréal, to commit theft;
|
|
(4) Nov. 30, 2000:
|
Convicted of
breaching a condition;
|
|
(5) March 27, 2001:
|
Applicant was arrested by Montréal police for death threats,
offence committed on March 26, 2001, released on
March 28, 2001 on conditions, trial scheduled for May 7, 2001,
at the Court of Sessions of the Peace; also for simple possession of
marijuana (not returnable);
|
|
(6) Oct. 15, 2000:
|
Convicted of
failure to comply;
|
|
(7) Aug. 9, 2007
|
Assaults and
forcible confinement
An appearance in
Municipal Court is scheduled for September 22, 2008, for the latest
charges.
|
[6]
The record also shows that the applicant did not
attend various interviews with Immigration authorities, as required. Clearly, the
applicant does not come to Court with clean hands.
[7]
In addition, the application for leave and judicial
review is almost four weeks out of time, and the applicant did not file a
request for an extension of time as prescribed by Rule 6(1) of the Federal
Courts Immigration and Refugee Protection Rules (the Rules).
[8]
These preliminary issues raised by the
respondent could be determinative of this stay motion where the relief sought
is equitable. I nonetheless considered the stay motion on the merits.
I. Serious issue
[9]
In his submissions in support of the stay
motion, the applicant particularly attacks the decision by the removal officer,
André Pelletier, not the decision by the PRRA officer, which is the subject of
the application for leave and judicial review that underlies this motion. The
decision by the removal officer, Mr. Pelletier, is not the subject of any
proceeding before this Court. At the hearing of the motion, the applicant stated
in a general way that the PRRA officer failed to consider all the evidence
before making his decision. This is not sufficient to show that a serious issue
exists.
[10]
After hearing the parties by teleconference and
considering their arguments, and based on all the evidence in the record, it is
my view that the applicant has not demonstrated that there is a serious issue
to be tried in the application for leave and judicial review.
II. Irreparable
harm
[11]
In this case, the risks alleged by the applicant
regarding Tunisia were assessed
and dismissed by the Immigration and Refugee Board (the Board), Citizenship and
Immigration Canada (CIC) and this Court. Thus, they cannot serve as a basis for
irreparable harm. Moreover, on these issues, the IRB determined that the
applicant was [translation] “not
credible at all.”
[12]
On the issue of harm vis-à-vis his family life and,
in particular, for the applicant’s spouse as well as the economic harm suffered
by the applicant and third parties, I am of the view that the evidence adduced
does not support the allegations of harm that have been put forward. The
evidence is insufficient and cannot serve as a basis to support harm on a stay
motion.
III. Balance of
convenience
[13]
In the circumstances, considering the
applicant’s criminal record and his history with the Canadian authorities, I am
of the view that the balance of convenience favours the respondent. I note that
subsection 48(2) of the Immigration and Refugee Protection Act (the IRPA)
provides that a removal order must be enforced as soon as is reasonably
practicable.
IV. Conclusion
[14]
For these reasons, the motion will be dismissed.
ORDER
THE
COURT ORDERS:
1. The motion
is dismissed.
2. The style of cause is amended by adding the Minister of
Citizenship and Immigration as the only respondent.
“Edmond P. Blanchard”
Certified true translation
Mary Jo Egan, LLB
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