Docket: IMM-7023-05
Toronto, Ontario, January 17, 2006
Present: THE HONOURABLE MR. JUSTICE VON FINCKENSTEIN
BETWEEN:
GURDAYAL SINGH DHOTHAR
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(Delivered orally from the bench and subsequently written for precision and clarification)
[1] The applicant, a native of India came to Canada on August 17, 1997 and made a refugee claim on December 7, 1998.
[2] His refugee claim was denied on December 7, 1998, his application for permanent residence on Humanitarian and Compassionate grounds (H & C) was denied April 10, 2003 and he received a negative Pre-Removal Risk Assessment (PRRA) on March 27, 2003.
[3] He was denied leave to seek judicial review regarding his refugee status on May 3, 1999. He also sought to seek leave to commence judicial review regarding both his H & C application and his PRRA application. By consent of both sides the two applications were sent back for re-determination. The PRRA re-determination resulted in a negative decision on September 14, 2005 and the H & C re-determination resulted in a negative decision on November 10, 2005.
[4] The applicant was slated for removal on December 7, 2005 which date was re-scheduled to January 25, 2006.
[5] It is well established to be successful in a stay application the applicant has to meet the tri-partite conjunctive test of Toth v. M.E. I., [1998] F.C.J. No. 587.
[6] The applicant is seeking a stay while his application for leave to seek judicial review regarding his H & C application is pending in which contends that the H & C officer erred in a) not evaluating his establishment in Canada properly, and b) erred in not herself assessing the risk but rather relying on and accepting the re-determination of the risk officer.
[7] I note that the applicant did not seek to challenge the negative PRRA re-determination but is challenging the H & C re-determination alleging the officer did not properly evaluate his establishment and failed to take the risk determination herself.
[8] While it is uncontested that the applicant is a law abiding citizen who is gainfully employed and has taken some steps to establish himself in Canada, it is also clear that he has strong ties to India where he has a wife and son. This issue of establishment has now been decided twice the immigration authorities.
[9] This issue of risk has now been decided directly three times; in the original Board hearing on the refugee claim, in the original PRRA decision, in the PRRA re-determination decision and indirectly in the H & C re-determination. In addition the Federal Court had to consider the issue when denying leave to seek judicial review of the refugee determination decision.
[10] The applicant argues that since he has no criminal record, is gainfully employed and has made steps to be socially and financially integrated into Canada the balance of convenience tilts in his favour.
[11] I cannot agree with this contention. In a case such as this one, where the applicant has strong roots in his country of origin and some establishment in Canada and where the issue of risk has been decided at least three times it is not only a question of fairness but integrity of the Canadian immigration system. As Evans, J.A. stated in Selliah v. Canada (M.C.I.) 2004 FCA 261 at para 21:
21 Counsel says that since the appellants have no criminal record, are not security concerns, and are financially established and socially integrated in Canada, the balance of convenience favours maintaining the status quo until their appeal is decided.
¶ 22 I do not agree. They have had three negative administrative decisions, which have all been upheld by the Federal Court. It is nearly four years since they first arrived here. In my view, the balance of convenience does not favour delaying further the discharge of either their duty, as persons subject to an enforceable removal order, to leave Canada immediately, or the Minister's duty to remove them as soon as reasonably practicable: IRPA, subsection 48(2). This is not simply a question of administrative convenience, but implicates the integrity and fairness of, and public confidence in, Canada's system of immigration control.
[12] Given that the Toth test is conjunctive and given that the applicant has not met the balance of convenience element, this application cannot succeed.
ORDER
THIS COURT ORDERS that this application be dismissed.
"K. von Finckenstein"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: GURDAYAL SINGH DHOTHAR
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JANUARY 16, 2006
AND ORDER BY: von FINCKENSTEIN J.
APPEARANCES:
| Krassina Kostadinov
|
FOR THE APPLICANT |
| Lisa Hutt
|
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
| Waldman & Associates Toronto, Ontario |
FOR THE APPLICANT
|
| John H. Sims, Q.C. Deputy Attorney General of Canada |
FOR THE RESPONDENT |
|
|
|