Date: 20030925
Docket: IMM-7126-03
Toronto, Ontario, September 25, 2003
Present: The Honourable Mr. Justice Blanchard
BETWEEN:
SAMUEL KOW ARTHUR
Applicant(s)
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA
Respondent(s)
REASONS FOR ORDER AND ORDER
[1] This is a motion for a stay of the execution of the Removal Order made against the applicant, until such time as the pending Application for Leave and for Judicial Review has been dealt with by the Court. The applicant is scheduled to be removed from Canada on September 30, 2003, at 7:45 p.m.
Facts
[2] The applicant is a citizen of Ghana who came to Canada on May 12, 2003 to visit his fiancée (a Canadian citizen) to finalize plans for their wedding. The wedding was to take place on August 23, 2003. The applicant alleges that when he arrived at the port of entry at Niagara Falls, Ontario, he requested a six-month visa to allow him to remain in Canada up to and beyond the wedding date. In fact, the applicant was issued an 18-day visitor visa.
[3] The applicant's visa expired on May 30, 2003. The applicant alleges that he believed that he had been granted a six-month visa and therefore remained in Canada past the authorized date. He was arrested and detained on August 1, 2003. After a hearing on August 6, 2003 he was released into the custody of his father-in-law, upon the posting of a $2,500.00 bond.
[4] The applicant and his fiancée were married on August 23, 2003, in Hamilton, Ontario. On September 5, 2003, the applicant attended a pre-removal interview conducted by Expulsion Officer, Sindi Pannu, of Citizenship and Immigration Canada and was ordered removed from Canada, effective September 30, 2003, since he was deemed to be a person described by s.41(a) and s.29(2) of the Immigration and Refugee Protection Act, ("IRPA"). The applicant alleges that he requested permission to submit a "Pre-Release" Risk Assessment as he feared for his safety in Ghana, but was denied the opportunity and was provided no reason for this denial. The applicant further asserts that he was threatened with immediate detention and removal upon receiving a negative Risk Assessment. The applicant states that he requested a delay of the removal proceedings so as to plan his affairs but this request was also denied without reasons. The applicant alleges that he signed the Notice of Removal Arrangements because he feared that if he refused, he would be detained, as indicated by the Expulsion Officer.
[5] Richard Startek, on behalf of the applicant contacted Carol Boulianne, Department Supervisor at Greater Toronto Enforcement Office of CIC to again request a "Pre-Release" Risk Assessment on September 16, 2003.
[6] The applicant has not resided in Ghana since 1996. He and his family left Ghana as they feared for their safety due to the political and economic instability of the country. The applicant therefore states that he does not have family, friends, employment, shelter or means to support himself should he be returned there. He wishes to remain in Canada with his wife and finish medical school. The applicant had completed one year at State University New York Stoneybrook in the United States prior to coming to Canada.
Analysis
[7] In order to succeed on his motion to stay the execution of the Removal 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 convenience lies in his favour. (Toth v. (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.))
Serious Issue
[8] Although unclear, the underlying application for Judicial Review appears to be an attack on the constructive refusal of Ms. Pannu to give the applicant a Pre-Removal Risk Assessment ("PRRA").
[9] It is the applicant's evidence that at a Pre-Removal interview the Expulsion Officer, Sindi Pannu, denied the applicant the opportunity to submit a request for a "Pre-Release" Risk Assessment. The applicant's further evidence is that the Expulsion Officer threatened to have the applicant immediately detained and subsequently removed upon the receipt of a negative "Pre-Release" Risk Assessment result.
[10] These are indeed serious allegations that must be weighed against the respondent's evidence. The affidavit of Sindi Pannu categorically denies the applicant's allegation and confirms that the applicant and his representatives specifically said, that they did not want a PRRA because the applicant was not in need of protection. Moreover, the applicant did not raise the issue of a request for a PRRA, the risk to him if returned to Ghana, or the alleged threat by the Expulsion Officer until materials were filed for this motion. It would appear, that such a serious matter, as the alleged conduct of an Expulsion Officer, would have been raised as a primary ground in the underlying judicial review. It was not mentioned in the underlying application.
[11] Further, circumstances surrounding the applicant's application for a visitor's visa, cause me to question the applicant's credibility. In his application he answered "No" to the question, whether he had committed, had ever been arrested or charged with any criminal offense in any country. In fact, the evidence shows that he has been charged and convicted of driving under the influence in Georgia while in the United States and is currently the subject of an arrest warrant for failing to appear on 12 charges of deposit account fraud. There is also a discrepancy in the applicant's evidence. He told the Immigration in New York, that the purpose of his trip was to visit his "fiancée," and to finalize their marriage plans. The applicant however, indicated on his visa application, that he intended to stay in Canada for one week only.
[12] I have reason to question the applicant's credibility and no reason to question the officer's integrity. I therefore accept the officer's evidence. On the strength of the respondent's evidence, I conclude that the applicant has failed to satisfy me that there is a serious issue to be tried in the underlying application.
Irreparable Harm
[13] The applicant has also failed to satisfy me that he would suffer irreparable harm if he were removed to Ghana. The applicant argues that "he and his family left Ghana as they feared for their safety due to the political and economic instability of the country; and that he does not have "any family, friends, employment, shelter as means to support himself should he be returned there."
[14] The evidence does not demonstrate a serious likelihood of jeopardy to the applicant's life or safety. The applicant's allegations as to why his family left Ghana in the first place, are bereft of detail and amount to no more than bare assertions. The evidence adduced by the applicant is speculative at best and is, clearly insufficient to establish irreparable harm for the purposes of a stay application.
Balance of Convenience
[15] In the circumstances, given the Minister's obligation to execute a Removal Order as soon as reasonably practicable, the balance of convenience should favour the respondent.
[16] For the above reasons, the motion for a Stay of the Removal Order will be dismissed.
ORDER
THIS COURT ORDERS that the motion for a Stay of the Removal Order is dismissed.
"Edmond P. Blanchard"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7126-03
STYLE OF CAUSE: SAMUEL KOW ARTHUR
Applicant(s)
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION CANADA
Respondent(s)
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: SEPTEMBER 22, 2003
REASONS FOR ORDER
AND ORDER BY: BLANCHARD J.
APPEARANCES BY: Mr. Richard Startek
For the Applicant(s)
Mr. Greg George
For the Respondent(s)
SOLICITORS OF RECORD: Mr. Richard Startek
Stoney Creek, Ontario
For the Applicant(s)
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent(s)
FEDERAL COURT
Date: 20030925
BETWEEN:
SAMUEL KOW ARTHUR
Applicant(s)
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA
Respondent(s)
REASONS FOR ORDER AND ORDER