Federal Court Decisions

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Date: 20040130

Docket: IMM-286-04

Citation: 2004 FC 152

Ottawa, Ontario, this 30th day of January, 2004

PRESENT:      THE HONOURABLE MR. JUSTICE MICHAEL L. PHELAN   

BETWEEN:

                                                           ALEX RIASCOS TORRES

                                                                                                                                                       Applicant

                                                                              - and -

                         THE MINISTER OF CITIZENSHIP AND IMMIGRATION and

THE SOLICITOR GENERAL OF CANADA

                                                                                                                                               Respondents

                                               REASONS FOR ORDER AND ORDER

PHELAN J.

[1]                 This is an application for an order staying the execution of a deportation order issued against the Applicant to be executed on February 2, 2004.

[2]                 The Applicant bases this application on a challenge to a Pre-Removal Risk Assessment ("PRRA") dated November 26, 2003.


The Facts

[3]                 The Applicant, a citizen of Columbia, returned to Columbia in June 1999, having served a nine year sentence in the United States for trafficking in narcotics.

[4]                 With the assistance of his mother and other family members, the Applicant started a taxi business which was reasonably successful.

[5]                 He came to Canada in April 2000 as a visitor but some three months later made a refugee claim.

[6]                 In February 2003, this refugee claim was deemed abandoned and leave to appeal was subsequently denied by this Court.

[7]                 The Applicant also filed a PRRA application which was firstly denied on May 16, 2003. After filing further submissions for a re-determination, the PRRA application was again refused on November 21, 2003.


[8]                 The Applicant claimed that he had a well-founded fear for his life on the basis that as a successful business person, he had been subjected to demands from the guerrilla group FARC to pay money ("taxes"). He claimed that having defied FARC, he had been threatened with personal injury and death.

Decision

[9]                 The Applicant says that:

a)          the serious issue is that PRRA decision is not well-reasoned and was patently unreasonable because the officer misappreciated the nature of the threat and lack of state protection;

b)          the irreparable harm is the potential loss of his life; and

c)          balance of convenience follows from the above.

[10]            The Applicant is, in essence, requesting this Court to re-weigh the evidence before the PRRA officer and substitute the Court's assessment of the facts for that of the officer

[11]            The PRRA officer did what the UNHCR report, "International protection considerations regarding Columbian asylum-seekers and refugees" cautions should be done:

The report states that it is important that decisions on refugee status of Columbian asylum-seekers be taken based on a thorough analysis of all individual circumstances of the case, such as the applicant's personal profile, family, social and ethnic background, his or her membership of or real/perceived collaboration with a particular social group as well as his or her activities.

[12]            The fact that, as suggested by the Applicant, 90% of Columbia refugee claims are approved by the IRB does not lessen the obligation to review each particular situation nor does it suggest that the PRRA officer did not perform the required analysis because the Applicant's claim was rejected.

[13]            The PRRA officer's decision shows sufficient degree of analysis and an adequate explanation of the basis for that decision in accordance with the nature of the decision to be made (see Ozdemir v. Canada (Minister of Citizenship and Immigration) 2001 F.C.A. 331 at para. 11).

[14]            Therefore, no serious issue has been made out.

[15]            Even if a serious issue had been made out, the Applicant did not meet the standard of providing clear, convincing and non-speculative evidence of harm.

[16]            The fact of removal does not render the leave or the judicial review moot (see Buchting v. Canada (Minister of Citizenship and Immigration) 2003 FC 953).

[17]            If the Applicant had been able to make out the first two requirements for a stay, the balance of convenience would have favoured the Applicant.

[18]            Therefore, this application for a stay will be dismissed.


                                                  ORDER

THIS COURT ORDERS that:

1.          The Solicitor General of Canada is added as a party.

2.          The application for an order staying the execution of the deportation order issued against Alex Riascos Torres, to be executed on February 2, 2004 is dismissed.

                                                                                   "Michael L. Phelan"                   

        J.F.C.                          

Ottawa, Ontario

January 30, 2004


                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   IMM-286-04

STYLE OF CAUSE: ALEX RIASCOS TORRES

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION and

THE SOLICITOR GENERAL OF CANADA

                                                         

PLACE OF HEARING:                                   Toronto, Ontario

DATE OF HEARING:                                     Monday, January 26, 2004

REASONS FOR ORDER AND ORDER OF PHELAN J.

DATED:                      Friday, January 30, 2004

APPEARANCES:

Lisa Winter-Card

FOR APPLICANT

Negar Hashemi

FOR RESPONDENTS

SOLICITORS OF RECORD:

The Law Offices of Lisa Winter-Card

Toronto, Ontario            

FOR APPLICANT

Morris Rosenberg, Q.C.

Deputy Attorney General of Canada

FOR RESPONDENTS


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