Docket: IMM-1820-16
Citation:
2016 FC 734
[ENGLISH
TRANSLATION]
Ottawa, Ontario, June 29, 2016
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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EUGENE MWALUMBA MATA-MAZIMA
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
THE MINISTER OF
PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Respondents
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ORDER AND REASONS
[1]
The applicant has been in Canada since 2007.
After having tried to obtain status in Canada through all available avenues, he
filed a motion for stay of a removal order against him.
[2]
The applicant’s stay application is related to
the negative decision in his second pre-removal risk assessment (PRRA), dated
January 14, 2016.
[3]
The Court read the entire record and the
supporting evidence to decide on the applicant’s application; this record was
reviewed attentively and in depth and every nuance in the evidence was
considered along with the written and oral submissions in order to review the
matter in its entirety.
[4]
On April 8, 2011, the Immigration and
Refugee Board found that the applicant was not a Convention refugee. The panel
decided to exclude the applicant under article 1F(a) of the
Convention because there were serious reasons for believing that the applicant
was an accomplice in crimes against humanity and in war crimes committed by
factions of the Forces armées congolaises (FAC).
[5]
The applicant filed an application for leave and
for judicial review of a negative decision made by the Refugee Protection
Division (RPD).
[6]
The application regarding the negative RPD
decision was dismissed by the Federal Court on June 6, 2012.
[7]
The applicant’s wife, who was granted refugee
status along with her children, also filed an application for permanent
residence in which her husband (the applicant) was named, but the applicant was
refused in the Family Class (reunification) given that the applicant is a
person described in paragraph 35(1)(a) of the Immigration and
Refugee Protection Act, SC 2001, chapter 27 (IRPA).
[8]
After the decision stating that the applicant
was inadmissible under paragraph 35(1)(a) of the IRPA, an
immigration officer decided to reopen the case to review the applicant’s
additional submissions and evidence, in particular with regard to the
application of the six factors in Ezokola v. Canada (Citizenship and
Immigration), [2013] 2 SCR 678, 2013 SCC 40 [Ezokola].
The judgment in Ezokola was considered; however, the application for
judicial review was still dismissed by the Federal Court.
[9]
The applicant began an initial pre-removal risk
assessment, whose finding was not in his favour.
[10]
The PRRA was stated in a second decision, even
more recent and also negative, after additions with regard to possible danger
to the applicant were reviewed. This negative decision was released on
January 14, 2016. The in-depth analysis and review of every nuance in the
applicant’s record found that the applicant did not demonstrate a risk of
torture or cruel and unusual treatment or punishment, or a risk to life, in the
event that he is removed to his country of nationality, this given the
applicant’s history; he worked at his country’s embassy in Algeria just before
leaving for Canada in 2007.
[11]
The Court notes that an application to reopen
the second PRRA decision was filed by the applicant and reviewed with yet
another case study. All of the additions to the record were taken into account,
but this application from the applicant was still dismissed.
[12]
The Court accepts the respondents’ submission,
which states that 27 people were removed by Canada to the Democratic
Republic of the Congo without proving a risk of torture or cruel or unusual
treatment or punishment or a risk to life in the event of removal to their
country of nationality. This is despite contrary information from the applicant
in his documents, but without proving the contrary with regard to these 27 people
indicated by the respondents.
[13]
In Toth v. Canada (Minister of Employment and
Immigration), (1988), 86 N.R. 302 (FCA) (see also RJR -
MacDonald Inc. v. Canada (Attorney General), [1994] 1 SCR 311),
the applicant did not meet any of the three criteria in the Toth test.
Because the applicant did not meet any of the criteria in the Toth
test, a stay cannot be granted.
[14]
Therefore, the motion for stay of removal is
dismissed.
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