Ottawa, Ontario, August 18th, 2005
Present: The Honourable Mr. Justice von FINCKENSTEIN
BETWEEN:
MIGUEL RAUL
APPLICANT
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
RESPONDENT
REASONS FOR ORDER AND ORDER
(Delivered orally from the bench, and written for clarity)
[1] This is a motion for a stay of removal to the United States planned for Thursday, August 18, 2005.
[2] The applicant, a citizen of Angola, arrived in Canada on December 29, 2000 and claimed refugee status. On August 16, 2004, his claim was rejected on the basis of Article 1(F) of the 1951 Convention Relating to the Status of Refugees (189 U.N.T.S. 150) and subsection 112(3) of the Immigration and Refugee Protection Act (2001, c. 27).
[3] He filed a pre-removal risk assessment (PRRA) application, which was rejected on April 19, 2005.
[4] He filed an Application for Leave and for Judicial Review with regard to the PRRA Officer's decision and is still waiting for the results of this application.
[5] He is now applying for a stay of removal until his judicial review case is complete.
[6] In order to succeed, the applicant must establish that he meets the three-part test established by the Federal Court of Appeal in Toth v. Canada (Minister of Employment and Immigration) (1988), 6 Imm. L.R. (2d) 123, 86 N.R. 302 (F. C.A.) (serious issue, irreparable harm and favourable balance of convenience elements). The test is conjunctive, and the absence of any of the elements is fatal.
[7] As regards irreparable harm, the applicant submits that:
(i) he will have difficulty communicating with his counsel regarding his request. He bases this argument on Sima Muncan v. The Minister of Citizenship and Immigration (IMM-2701-97, February 24, 1998); and
(ii) he does not have employment in the United States and will have difficulty supporting himself.
[8] None of the above reasons is acceptable. Muncan, supra, dealt with Yugoslavia. In this case, the applicant will be removed to the United States. There is no reason to believe that communication problems between Canada and the United States will occur. The fact that he does not have employment in the United States is regrettable, but does not constitute irreparable harm.
[9] Consequently, as we have determined that the applicant did not establish irreparable harm, the applicant cannot succeed in this request.
ORDER
THIS COURT ORDERS THAT the motion is dismissed.
"Konrad W. von Finckenstein "
Judge
Certified true translation
Magda Hentel
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4207-05
STYLE OF CAUSE: MIGUEL RAUL
v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: August 17, 2005
REASONS FOR ORDER BY: The Honourable Mr. Justice von Finckenstein
APPEARANCES:
Kibondo M. Kilongozi
FOR THE APPLICANT
Sonia Barrette
FOR THE RESPONDENT
SOLICITORS OF RECORD:
KIBONDO M. KILONGOZI
Lawyer & Notary
Ottawa, Ontario
FOR THE APPLICANT
JOHN H. SIMS, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario
FOR THE RESPONDENT