PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] To reweigh the evidence would be to depart from the jurisdiction of this Court and usurp the jurisdiction of the triers of fact who found the narrative of the Applicant to lack credibility at its very core.
JUDICIAL PROCEDURE
[2] The Applicant claims risk in Nigeria based on being bi-sexual. He seeks a stay of his removal (scheduled for June 7, 2007) based on a challenge of his Pre-Removal Risk Assessment (PRRA). The alleged risks have already been dismissed by the Refugee Protection Division (RPD), the Federal Court and the PRRA officer. The Applicant has not met the tri-partite test.
BACKGROUND
[3] The Applicant is a citizen of Nigeria. He came to Canada in January 2004 under a false identity claiming to be a visitor. He continued to deny his true identity, insisting that he was an American citizen, even after he was confronted by an immigration officer. The Applicant did not admit his true identity until after he was told that he was not going to be admitted to Canada under his false identity. (Affidavit of Tom Heinze, Exhibit C, p. 1.
[4] The Applicant claimed refugee protection at the airport after he admitted his true identity. He based his claim on vague grounds. He did not make any mention of his sexual orientation as the basis for his claim until weeks later. The RPD member who questioned the Applicant about this issue, held that the Applicant lacked credibility and that his claim is a fabricated story. (Affidavit of Tom Heinze, Exhibit C, p. 2.)
[5] The Federal Court dismissed the application for leave and judicial review of the RPD’s decision. (Affidavit of Tom Heinze, Exhibit D.)
[6] The Applicant based his PRRA application on the very same facts. He did not submit any evidence of the PRRA officer to allay the credibility concerns that the RPD had found. (Applicant’s Motion Record, pp. 16-17.)
[7] The PRRA officer found that the Applicant does not face risk upon returning to Nigeria. (Applicant’s Motion Record, pp. 5-10.)
POINTS IN ISSUE
[8] The Applicant has not met the tri-partite test as set out in Toth v. Canada (Minister of Employment and Immigration), (1988), 86 N.R. 302 (F.A.C.), [1988] F.C.J. No. 587 (QL).
SERIOUS ISSUE
[9] It is unclear from the Applicant’s submissions what the serious issue is in this case. The Applicant has not identified what error has been committed by the PRRA officer. (Applicant’s Motion Record, p. 36.)
[10] A PRRA officer’s decision attracts significant deference. Justice Luc Martineau confirmed in Rajz v. Canada (Minister of Citizenship and Immigration), IMM-5263-03 (15 July 2003),”that the PRRA officer has sole jurisdiction over the facts. The Court should not enter into re-weighing of evidence.” (Reference is also made to Gonzalez v. Canada (Minister of Citizenship and Immigration), IMM-3659-03 (30 May 2003).)
[11] In Iqbal v. Canada (Minister of Citizenship and Immigration), IMM-5646-03 (11 August 2003), the Applicant did not demonstrate a “patently unreasonable finding of fact” or an error of law and therefore, Justice Michael Kelen found no serious issue. (Reference is also made to Mekolli v. Canada (Minister of Citizenship and Immigration), IMM-4974-03 (9 September 2003); Karaman v. Canada (Minister of Citizenship and Immigration), IMM-6676-03 (9 September 2003); Yilmaz v. Canada (Minister of Citizenship and Immigration), IMM-5609-03; Ahmed v. Canada (Minister of Citizenship and Immigration), 2003 FCT 706, [2003] F.C.J. No. 928 (QL), at paras. 4-5.)
The PRRA Officer considered relevant evidence
[12] The Applicant failed to meet the burden of providing the officer with sufficient evidence and now blames the officer for an unfavourable decision. Applicants have the onus of establishing the facts on which their claim rests. They omit pertinent information from their written submissions at their peril. (Owusu v. Canada (Minister of Citizenship and Immigration), 2004 FCA 38, [2004] F.C.J. No. 158 (QL), at para. 8.)
[13] A submission that is oblique, cursory and obscure does not impose a positive obligation on the officer to inquire further about an issue relied on by an applicant. (Owusu, above, at para. 9.)
[14] The officer considered the totality of documents submitted by the Applicant which included his PRRA application form with attached documentation, the decision of the Refugee Protection Board, and the US Department of State Country Reports on Human Rights Practices – Nigeria 2006 and 2003. (Applicant’s Motion Record, pp. 5-10.)
[15] The reasons given by the PRRA officer adequately explain the basis of her decision and no serious issue is raised in this regard.
IRREPARABLE HARM
[16] The Applicant has failed to show in a clear and non-speculative manner that his deportation would cause more than mere hardship and inconvenience. There is no persuasive evidence as to what will happen to the Applicant upon return to Nigeria. Being removed from Canada, in itself, as a result of being illegally in Canada is not irreparable harm. (Syntex Inc. v. Novopharm Ltd., (1991), 36 C.P.R. (3d) 129; Imperial Chemical Industries PLC v. Apotex, Inc., [1990] 1 F.C. 221, [1990] F.C.J. No. 950 (QL).)
[17] When assessing the Applicant’s evidence of irreparable harm for the purposes of the within stay motion, the RPD’s credibility findings are relevant to whether the Applicant has established credible evidence of irreparable harm. The RPD found that the Applicant’s claim is not credible. (Affidavit of Tom Heinze, Exhibit C.)
[18] As Justice Marc Nadon stated in Saibu v. Canada (Minister of Citizenship and Immigration), 2002 FCT 103, [2002] F.C.J. No. 151 (QL):
[11] …The Refugee Board concluded against the Applicant on his refugee claim and his leave application to this Court was dismissed. In his affidavit, the Applicant puts forth the story which was before the Refugee Board. That story, as I have already indicated, was found not to be credible. Hence, it cannot serve here as a basis for an argument supporting irreparable harm.
(Reference is also made to Hussain v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 751 (QL), at para. 12; Akyol v. Canada (Minister of Citizenship and Immigration), 2003 FC 931, [2003] F.C.J. No. 1182 (QL), at para. 9; Rajz, above.)
[19] The Applicant has not met the second part of the tri-partite test, namely, demonstrable proof of irreparable harm.
BALANCE OF CONVENIENCE
[20] Subsection 48(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), provides that an enforceable removal order must be enforced as soon as is reasonably practicable.
[21] The Applicant seeks extraordinary equitable relief. It is trite law that the public interest must be taken into consideration when evaluating this last criterion. In order to demonstrate that the balance of convenience favours the Applicant, the latter should demonstrate that there is a public interest not to remove him as scheduled. (RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311; Blum v. Canada (Minister of Citizenship and Immigration), (1994) 90 F.T.R. 54, [1994] F.C.J. No. 1990 (QL).)
[22] The Applicant has not demonstrated that the balance of convenience favours the non-application of the law nor outweigh the public interest.
CONCLUSION
[23] For all of the above reasons, the Motion for the stay of removal is dismissed.
ORDER
THIS COURT ORDERS that motion for the stay of removal be dismissed.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2076-07
STYLE OF CAUSE: SODIQ EARL OYINLOYE v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING
BY TELECONFERENCE: May 31, 2007
APPEARANCES:
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Mr. Joel Etienne
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Ms. Negar Hashemi
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SOLICITORS OF RECORD:
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JOEL ETIENNE Barrister and Solicitor Toronto, Ontario
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JOHN H. SIMS, Q.C. Deputy Attorney General of Canada
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