Date: 20040623
Docket: IMM-5394-04
Citation: 2004 FC 903
Toronto, Ontario, June 23rd, 2004
Present: The Honourable Mr. Justice O'Keefe
BETWEEN:
CRISTIANO FERREIRA DOMINGOS
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is a motion by the applicant for an order staying his removal from Canada to Brazil which is scheduled to take place on June 25, 2004.
[2] The applicant is a citizen of Brazil who arrived in Canada from Brazil on March 8, 2000. He made a claim for refugee status on June 12, 2002 which was declared abandoned after the applicant missed a hearing date due to illness on January 15, 2003. The IRB refused to re-open his hearing.
[3] The applicant submitted a Pre-Removal Risk Assessment ("PRRA") application on December 30, 2003 which was denied on May 5, 2004. The applicant was notified of the decision on June 2, 2004.
[4] The applicant came to Canada on a visitors visa as he feared for his life in Brazil because he received death threats from criminals. The applicant had witnessed a robbery in March 2000 at a drug store. The applicant went back to the drug store to check what had happened. If needed, he would call the police and tell them what he saw. As the owner did not wish to report the robbery the applicant did nothing further.
[5] The applicant states that he was followed by the criminals and that an anonymous friend told him in, a phone call, that the criminals were going to kill him. There were phone calls to his house asking for someone whose description fit his. A car with one of the robbers in it followed him at the soccer field and the occupants said they had police officers on their payroll.
[6] The applicant is married to a Canadian citizen and would be separated from his wife if he is returned to Brazil.
[7] The applicant filed for a judicial review of the negative PRRA decision.
Issue
[8] Should an order issue staying the removal of the applicant?
Analysis and Decision
[9] In order to obtain a stay, the applicant must satisfy the requirements set out in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.), at page 305:
This Court, as well as other appellate courts have adopted the test for an interim injunction enunciated by the House of Lords in American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 .... As stated by Kerans J.A. in the Black case supra:
The tri-partite test of Cyanamid requires, for the granting of such an order, that the applicant demonstrate, firstly, that he has raised a serious issue to be tried; secondly, that he would suffer irreparable harm if no order was granted; and thirdly that the balance of convenience considering the total situation of both parties favors the order.
The applicant must meet all three branches of the tri-partite test.
Serious Issue
[10] I am not satisfied on the evidence before me that the applicant has raised a serious issue to be tried. The applicant argued that the PRRA officer made errors with respect to the findings on state protection. In essence, the applicant states that the applicant is unwilling to approach the state for protection because of his fear that the police are working together with the criminals he fears. I have reviewed the PRRA officer's decision and I cannot conclude that the findings raise a serious issue to be tried. In fact, the applicant himself in his PRRA submissions states in part at paragraph 3:
.... As I was leaving the establishment I heard a gun shot, but I never came back to see what had happened. I thought about calling the police but, since nothing had happened to me and I didn't know if the owners of the pharmacy wanted to lay charges, I decided to go back to the pharmacy in the morning and check what happened. If needed, then I would call the police and tell what I saw.
At this point, the applicant considered going to the police.
[11] Because of my ruling on the serious issue branch of the tri-partite I need not deal with the other parts of the test as the applicant must meet all these parts of the tri-partite test in order to succeed.
[12] The applicant's motion for a stay is dismissed.
[13] The style of cause in the application is amended by deleting the words "The Minister of Citizenship and Immigration" as respondent and substituting therefore the words "The Solicitor General of Canada".
ORDER
THIS COURT ORDERS that:
1. The applicant's motion is dismissed.
2. The style of cause in the application is amended by deleting the words "The Minister of Citizenship and Immigration" as respondent and substituting therefore the words "The Solicitor General of Canada".
"John A. O'Keefe"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5394-04
STYLE OF CAUSE: CRISTIANO FERREIRA DOMINGOS
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 21, 2004
REASONS FOR ORDER
AND ORDER BY: O'KEEFE J.
APPEARANCES BY:
Ms. Lisa R. G. Winter-Card
FOR THE APPLICANT
Ms. Allison Phillips
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Niren & Associates
Barrister and Solicitor
Toronto, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
FOR THE RESPONDENT
FEDERAL COURT
Date: 20040623
Docket: IMM-5394-04
BETWEEN:
CRISTIANO FERREIRA DOMINGO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER