Date: 20050901

Docket: IMM-4313-05

Citation: 2005 FC 1196

Montréal, Quebec, September 1, 2005

PRESENT: THE HONOURABLE MR. JUSTICE DE MONTIGNY

BETWEEN:

PARMOD KUMAR

Applicant

and

MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1]                            Through this motion, the applicant is seeking to stay the enforcement of a removal order against him, as well as an extension of time for filing the applicant's record. This motion is attached to an application for leave and for judicial review of a decision by the immigration officer dismissing the pre-removal risk assessment (PRRA), dated June 23, 2005. The departure from Canada is scheduled for Wednesday, September 7, 2005.

[2]                            The applicant is a Hindu citizen from Punjab in India. He claims to have been the victim of extortion by the members of the group AISSF Bittu. After filing a report with the police, he was allegedly arrested and fingerprinted. After the investigation by the police, two individuals were arrested. Members of the AISSF Bittu retaliated by persecuting the applicant and his family. He then fled to Haryana, in India, then fled to Germany after his mother's arrest.

[3]                            As Germany denied him refugee status, the applicant filed a refugee claim upon his arrival in Canada, on December 26, 1999.

[4]                            On January 9, 2001, the Refugee Division of the Immigration and Refugee Board (IRB) dismissed his claim. The application for leave and judicial review filed by the applicant in this Court was dismissed on September 4, 2001.

[5]                            Afterward, the applicant applied under the Post-Determination Refugee Claimants in Canada Class (PDRCC), which became a pre-removal risk assessment (PRRA) with the enactment of the new Immigration and Refugee Protection Act (the Act). He also filed an application for visa exemption on humanitarian and compassionate grounds.

[6]                            On July 12, 2005, the applicant received in person the negative decisions on his PRRA application and his application for visa exemption on humanitarian and compassionate grounds, as well as a notice informing him of the date of his removal. The immigration officer responsible for examining these applications first noted that the applicant's claims were essentially the same as those that he had argued before the IRB. With respect to the new evidence submitted (the affidavit of a Sarpanch and five letters of support), he considered that the testimony was self-serving. Finally, he determined that the documentary evidence did not establish that the applicant would face a personal and objectively identifiable risk if he were to return to India, since the violent confrontations between the Sikh militants and the Indian authorities were now things of the past.

[7]                            It is appropriate, first, to decide the application for extension of time. It is well established that it is up to the applicant to provide a valid reason for being late (Semenduev v. M.C.I., [1997] F.C.J. No. 70 (F.C.); Buhalzev v. M.C.I., [1999] F.C.J. No. 1098 (F.C.)). In this case, the applicant did not make any argument, orally or in writing, attempting to explain the delay in filing his record in support of his application for leave and for judicial review.

[8]                            In the absence of an affidavit establishing the reasons why the extension of time is requested, it is difficult for me to exercise my discretion in the applicant's favour. When the application for leave was filed, the applicant's counsel knew that he had 30 days to present it. There is nothing that would suggest to me that the delay resulted from an unforeseen event, beyond the applicant's control. For that reason alone, the application for leave and judicial review must be dismissed, in which case the motion for stay must suffer the same fate.

[9]                            In any event, even supposing that the motion for stay may be examined, I could not grant it because in my opinion the applicant has not met the three tests set out by the Federal Court of Appeal in Toth v. M.E.I., 86 N.R. 302. Those tests, imported from case law elaborated in injunction matters, may be set out as follows: (1) the existence of a serious issue to be tried; (2) irreparable harm; and (3) the assessment of the balance of convenience.

[10]                        With regard to the serious issue to be tried, the applicant's argument is essentially that the PRRA officer erred in not assigning any credibility to the Sarpanch's affidavit on the grounds that this letter had been written only a few days after the applicant had been advised that he could file a PRRA application. In the opinion of applicant's counsel, that indicates that Punjab immigrants have no chance of establishing that they are persecuted unless they are "high profile" militants.

[11]                        Besides the fact that an application for judicial review can only bear on the decision whose lawfulness is challenged, counsel failed to show me that he had any chance of establishing that the decision by the PRRA officer was patently unreasonable.

[12]                        It is well established that the PRRA procedure is not an appeal mechanism, or a stage for revision of IRB decisions. The sole purpose of this program is to assess the risks to which a person could be exposed after their removal to their native country in light of new facts that arise after the decision on the refugee claim. Paragraph 113(a) of the Act, like subsection 161(2) of the Immigration and Refugee Protection Regulations, do not leave any room for ambiguity on that point.

[13]                        In this case, the PRRA officer emphasized in his decision that the applicant's pre-removal risk assessment application was based essentially on the same facts that were alleged before the IRB. He was therefore justified in only considering the evidence arising after the IRB denied the claim, as provided under paragraph 113(a) of the Act.

[14]                        With regard to the Sarpanch's affidavit, which was the only new evidence filed before him, the PRRA officer gave several reasons for not assigning it any probative value. He had to proceed with that assessment and his decision in that respect was certainly not unreasonable.

[15]                        In the end, the PRRA officer determined that there was no objective basis for the applicant's fear. He took into account the diverse and convincing documentary evidence, as well as noting that the applicant could not be of any interest to the authorities since he was not an active militant and was not suspected of subversive activities. Not to mention the fact that he left the country nine years ago. In that context, the PRRA officer could certainly prefer the objective documentary evidence to the affidavit of a Sarpanch whose credibility was dubious.

[16]                        Considering the foregoing, I determine that the applicant did not establish the existence of a serious issue to be tried.

[17]                        That finding is in itself sufficient to dispose of this matter. Further, the applicant did not succeed in establishing that he would suffer irreparable harm if his motion to stay the enforcement of the removal order were to be dismissed. He had the opportunity to submit his arguments on many occasions and each time his arguments were dismissed. Allegations that have already been examined by the courts cannot support an argument to the effect that there is irreparable harm (Akyol v. M.C.I., [2003] F.C. 931).

[18]                        Finally, the balance of convenience is in favour of the public interest that the immigration process follow its course under the Act. One must always bear in mind that subsection 48(2) of the Act imposes on the respondent the obligation to enforce the removal order as soon as is reasonably practicable. In this case, there is no basis for me to determine that this order must be stayed.

[19]                        For these reasons, the motion for a stay is dismissed.

ORDER

THE COURT ORDERS that the motion be dismissed.

"Yves de Montigny"