Date: 20040119
Docket: IMM-398-04
Citation: 2004 FC 76
Toronto, Ontario, January 19th, 2004
Present: The Honourable Mr. Justice Shore
BETWEEN:
AMARPREET SINGH ATWAL
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] This is a motion requesting a stay of the removal order issued against the Applicant for January 19, 2004.
[2] The Applicant requests that a stay be granted and that the Applicant's case be referred back for a rehearing and re-determination before a differently constituted panel and, in addition, a reassessment of the PRRA application.
BACKGROUND
[3] The Applicant is a Sikh from Punjab, India. After having had a first application for refugee status refused, he, for a second time, under an assumed name, claimed and was granted, refugee status on the basis of imputed political opinion, suspected of aiding Sikh militants due to his association with the All India Sikh Student Federation (AISSF) and participation in several protests.
[4] His refugee status was subsequently revoked when it was discovered through his finger prints that the Applicant had made this claim under an assumed name. Identity is key to an Immigration and Refugee system that is to have any validity. (Reference is made to the affidavit of Mrs. Kareena Wilding for the Respondent, dated January 19, 2004)[1]
[5] The Applicant maintains that he was tortured and abused at the hands of the Indian Police on the basis of his imputed political opinion.
[6] The Applicant submitted a PRRA application, dated March 25, 2003, which was rejected.
[7] From the record it does not appear that the Applicant filed an application for leave to file a judicial review of the PRRA assessment.
ISSUE
[8] Should the removal order be stayed?
ANALYSIS
[9] In proceeding on the merits of the stay application on the basis of Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.), the Court has considered the tri-partite conjunctive test:
Serious Issue
[10] The Court has the jurisdiction to order a stay, even when there is no underlying application for leave to file an application for judicial review; as paragraph 50(1)(b) states, the Court may stay a proceeding "where for any other reason it is in the interest of justice that the proceedings be stayed." This question need not be resolved, as there is no serious issue to be tried.
[11] The Applicant submits that he submitted information to the Immigration Officer conducting the PRRA as to the situation in Punjab and that he himself would be subject to risk to life or cruel and unusual punishment should he be returned to Punjab. The Applicant then essentially submits that the Immigration Officer erred in fact by finding that the Applicant would not be at risk should he be removed to Punjab.
[12] The Applicant further submits that the Immigration Officer failed to take into consideration similarly situated individuals when she determined that the Applicant had an IFA.
However, the Applicant has not provided a copy of the materials he filed with the Immigration, nor has he filed the actual PRRA assessment.
[13] The Applicant has failed to establish that there is a serious likelihood of non-speculative irreparable harm to the principal Applicant.
[14] There is no serious issue to be tried.
Irreparable Harm
[15] From the Applicant's submissions that the Applicant is arguing irreparable harm on the basis that he would be at risk to life or cruel and unusual punishment should he be returned to Punjab. His refugee status, however, was revoked, and his PRRA application was rejected. As the decisions are not included in the materials there is no basis upon which the Court could even question that conclusion.
Balance of Convenience
[16] Again, the Applicant has not brought forward any evidence as to the balance of convenience and therefore has not proven this part of the test either.
CONCLUSION
[17] The Applicant was previously self-represented, which may explain why his motion materials are so sparse. Even, after having given the Applicant as much leeway as possible, given that he was unrepresented previously, the motion should be dismissed. It fails to meet the conjunctive tri-partite test set out in Toth, as specified in the analysis. The motion is to be denied.
ORDER
THIS COURT ORDERS that the motion is denied.
"Michel M. J. Shore"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-398-04
STYLE OF CAUSE: AMARPREET SINGH ATWAL
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JANUARY 19, 2004
REASONS FOR ORDER
AND ORDER BY : SHORE J.
DATED: JANUARY 19, 2004
APPEARANCES:
Ms. Inna Kogan FOR APPLICANT
Ms. Neeta Logsetty FOR RESPONDENT
SOLICITORS OF RECORD:
Inna Kogan
Barrister & Solicitor
Toronto, Ontario
FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR RESPONDENT
FEDERAL COURT
TRIAL DIVISION
Date: 20040119
Docket: IMM-398-04
BETWEEN:
AMARPREET SINGH ATWAL
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER