Date: 20030711
Docket: IMM-3981-03
Citation: 2003 FC 866
BETWEEN:
LANCINE DIALLO
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
Pursuant to section 51 of the Federal Court Act, please file the revised version of the transcript of my reasons for order delivered from the bench at Montréal, Quebec, on Monday, June 2, 2003, and rendered orally.
|
|
"Johanne Gauthier"
Judge |
Ottawa, Ontario
July 11, 2003
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
CANADA FEDERAL COURT OF CANADA
PROVINCE OF QUEBEC
DISTRICT OF MONTRÉAL
BEFORE THE HONOURABLE JOHANNE GAUTHIER
No.: IMM-3981-03
BETWEEN: LANCINE DIALLO
Plaintiff
- AND -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
APPEARANCES: LUCIE ST-PIERRE
Counsel for the defendant
JUNE 2, 2003
On June 2, TWO THOUSAND AND THREE
THE HONOURABLE JOHANNE GAUTHIER:
We shall enter in the transcript that the Court contacted Mr. Diallo this morning to indicate to him - to remind him of his invitation to appear in court this morning. He indicated to us that he needed about an hour for transportation and we waited until 1:30 p.m. Mr. Diallo is still not present.
So the Court will proceed to hear the defendant's submissions briefly, it being agreed that Mr. Diallo's submissions have been read and will be considered by the Court. Ms. St-Pierre?
LUCIE ST-PIERRE,
Counsel for the defendant:
The applicant today, Mr. Diallo, and with the Court's leave I will address you in French.
BY THE COURT:
Yes.
LUCIE ST-PIERRE:
Although he wanted us to . . . right. Mr. Diallo asked the Court to issue a stay of the deportation order which is in effect and is to be carried out tomorrow morning at 8:30 a.m. or as soon as possible.
The motion was served on me, as well as the application for leave and application for judicial review, on May 28. However, we have not received the applicant's record, the record . . .
BY THE COURT:
We can proceed in English if you prefer, if your pleading is in English.
LUCIE ST-PIERRE:
No, no, it's all right. It's because it is - the plaintiff's record, the applicant's record, did not get to us. However, this morning Mr. Poggi was kind enough to give me a copy of the written submissions and of two affidavits which had been sent at the very last minute on Friday.
So before beginning with the facts in this case, I would like to point out to the Court that this is a motion which is made, I would say, in extremis, that is, at the very last minute and on the basis of quite substantial and extensive precedent in the Court, it is a sufficient basis for dismissing the instant motion for a stay.
BY THE COURT:
But the date of dismissal of . . .
LUCIE ST-PIERRE:
Mr. Diallo - of dismissal of . . .
BY THE COURT:
Wait a minute. He received his order telling him he had to leave when?
LUCIE ST-PIERRE:
He received it personally from officer André Graveline on May 15 last. That is quite a bit of time; and we find this morning that although he is seeking a quite extraordinary remedy, he seems to have taken no interest in his case since he is not present.
Now, I have to submit to you nevertheless that in the pleadings, in fact it is quite confusing, the application for leave, that is the principal application, concerns, and it states:
"The decision pertains to the Refugee Division's File number NAO rendered by . . ."
where it speaks of the application, in fact his claim for refugee status, which has been denied, that is dismissed on September 28, as indicated. Mr. Diallo filed an application for leave, an application for judicial review, contrary to what he stated in the pleadings he sent to the Court. His application for leave was dismissed in February 2001, if I am not mistaken.
You have in the exhibits before you in support of Laurence Gagnon's affidavit - I gave you the Court number; I do not know if you have had an opportunity? It is tab D.
BY THE COURT:
Yes.
LUCIE ST-PIERRE:
Where you see the order dated February 28, 2001.
BY THE COURT:
Right.
LUCIE ST-PIERRE:
Then, in that decision, in fact not in that decision but in the Refugee Division's decision, it was concluded that he was not credible, that the story submitted was not credible, but there was no conclusion as to a credible basis, as was alleged by Mr. Diallo in his pleadings.
So, I think that - listen. He had to rely heavily on a record . . .
BY THE COURT:
Yes.
LUCIE ST-PIERRE:
. . . that was not his own. Because we are talking about Turkey, we are talking about Colombo, we are in fact talking about several parties.
BY THE COURT:
Yes. Could you just indicate what you included in the file, allegations of forgery, an entry for producing forgeries, where is this in the file?
LUCIE ST-PIERRE:
Just to explain, I prepared this document for the Court on Friday evening as I had received nothing; however, I completed it this morning because I was expecting to receive something by fax. I have received nothing.
So, I was unaware this morning what would be argued by Mr. Diallo or even if he was to be represented. Accordingly, I included in this document almost everything in my client's file so I would be in a position to represent him adequately this morning, because I could still argue on the basis of the file you have.
So I introduced this in evidence strictly because in his originating pleadings he indicated he was a refugee claimant whose status had not been recognized for two years.
BY THE COURT:
That's right.
LUCIE ST-PIERRE:
But I nevertheless wanted the Court to be aware of the fact that for at least six months we could not do anything whatsoever in the case because there was a stay under 50(1)(a). It was clear that this party - I did not know what he was going to argue this morning.
BY THE COURT:
Yes, right.
LUCIE ST-PIERRE:
So I put this to show you that at least between January 2002 and June 2002 he could not be deported since he had to appear in court. He obtained his decision, I think it was on June 17.
BY THE COURT:
Right. Now, I understand that he is to be removed to the U.S.
LUCIE ST-PIERRE:
That's right. In fact, that is what I was coming to. I do not think it would be advisable to go further into the question of . . .
BY THE COURT:
Of irreparable harm?
LUCIE ST-PIERRE:
No. On the question - the serious question - because there are three parts to the test which must be met and clearly there is no irreparable harm in this case, since contrary to what he said he will not be sent back to Guinea but to the U.S. tomorrow.
So, the Court has several times said that a person seeking a stay must show that irreparable harm is likely in the country to which he will be sent, and in the case at bar, this is the U.S. There is no proof of irreparable harm.
On that basis, I think that the Court must have sufficient evidence. Further, I have inserted in Ms. Gagnon's affidavit, the letter, which I think is dated November.
BY THE COURT:
From the consulate.
LUCIE ST-PIERRE:
That's right, from the United States' Embassy in Ottawa. It is Exhibit E. Then, he - this is the evidence that tomorrow this letter will be given to a U.S. representative and he will simply be accepted on presentation of this letter.
BY THE COURT:
Right.
BY THE COURT:
As I said, I have carefully examined the exhibits in the record and the Court is prepared to render judgment as the deportation order, if not stayed, will take effect tomorrow.
ORDER
UPON motion dated May 27, 2003 for an Order that the applicant's removal be stayed until such time as his application for humanitarian and compassionate grounds is assessed;
UPON reading the material before the Court and hearing the representations of the respondent, in the absence of the applicant and considering that he has been duly advised that he should be present to make representations to this Court today, the Court has determined that for the purpose of this interlocutory application applying the tripartite test set out in Toth, that even if the applicant has raised a serious issue, there is absolutely no evidence of likelihood of irreparable harm given that he would be removed to the United States. The motion is dismissed.
I the undersigned, NICOLE RAYMOND, bilingual official stenographer, hereby certify on my oath of office that the preceding pages are and contain a true and exact transcript of the evidence and testimony in this case taken by stenomask in accordance with the law.
AND I HAVE SIGNED:
|
|
NICOLE RAYMOND, o.s. |
FEDERAL COURT
SOLICITORS OF RECORD
FILE: IMM-3981-03
STYLE OF CAUSE: LANCINE DIALLO
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 2, 2003
REASONS FOR ORDER: The Honourable Johanne Gauthier
DATE OF REASONS: June 2, 2003
APPEARANCES:
No one FOR THE PLAINTIFF
Lucie St-Pierre FOR THE DEFENDANT
SOLICITORS OF RECORD:
Lancine Diallo FOR THE PLAINTIFF
Montréal, Quebec
Deputy Attorney General of Canada FOR THE DEFENDANT