Date: 20050201
Docket: IMM-223-05
Citation: 2005 FC 159
BETWEEN:
HARJIT SINGH
Applicant
and
THE SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR ORDER
PHELAN J.
OVERVIEW
[1] The Applicant, Harjit Singh (Singh), is attempting to stave off deportation by seeking a stay of his removal order scheduled for February 2, 2005. He claims that the then Minister of Citizenship and Immigration exercised undue and improper influence over officers in the Department in denying his application for permanent residence which was based on humanitarian and compassionate grounds (H & C application). The argument in favour of a stay based on grounds of unlawful detention was abandoned during the oral hearing.
[2] Singh's stay application and the application for leave for judicial review are based on the allegation that (1) he had made an arrangement with the then Minister to have his immigration problems resolved in exchange for pizzas and election volunteers and, (2) that the Minister reneged on the arrangement and influenced departmental officers, most particularly the officer deciding the H & C application. The Applicant says that these circumstances raise a reasonable apprehension of bias.
[3] Singh goes on to argue that if deportation is not stayed, he will be unable to conduct his legal proceedings from India and that, in view of his allegations, the public interest in the integrity of the immigration system, shifts the balance of convenience in his favour.
[4] For the reasons provided, the Court finds that:
a) Singh has not raised a serious issue of reasonable apprehension of bias because the overall allegations lack the necessary "ring of truth" and the specific allegations of improper influence are credibly denied under oath;
b) His removal to India does not prevent him, either practically or legally, from pursuing his legal remedies in Canada;
c) The balance of convenience in this case, and the public interest in the integrity of the immigration system, clearly favour his removal at the earliest opportunity.
[5] Therefore his application for a stay will be dismissed.
BACKGROUND
[6] Singh has been in Canada since 1988 and for most of that time he has had no legal status. He has had a long and difficult time with immigration officials, police and the courts. His first deportation order was issued on June 8, 1992 as a result of a failed refugee claim. He has been under a removal order of one type or another since then.
[7] While it is not necessary to recite the whole of Singh's legal history in Canada, it is sufficient to note that it includes multiple failed immigration proceedings and judicial reviews, criminal convictions in India, criminal charges in Canada, and active participation in a credit card fraud scheme. The details of this history are set out in the Respondent's affidavits. His credibility has been challenged and found wanting.
[8] In regard to this application for a stay, it is relevant to note that on May 9, 2001, Singh's application for permanent residence was refused on the basis of his criminal conviction in India. Judicial review of the immigration officer's decision was dismissed by Justice Kelen in May 2002.
[9] Singh's pre-removal risk assessment (PRRA) conducted in 2002 was negative. Judicial review of that decision was dismissed by Justice Russell on February 26, 2004.
[10] In the interim, between the denial of his permanent residence application and his PRRA, Singh filed his 6th H & C application on June 6, 2002, which is the subject-matter of the application for judicial review in these Court files.
[11] With a history that includes a failed refugee claim, five failed H & C applications and three failed judicial reviews, by June 2004 Singh had been scheduled for removal to India on July 10, 2004. He failed to attend his pre-removal interview and a request for a warrant for his arrest was made. For unexplained reasons, the warrant was never issued.
[12] On November 29, 2004, Singh's last H & C application was denied. He received a copy of the decision on December 2, 2004 and commenced judicial review proceedings under Court file IMM-10308-04.
[13] Singh is alleged to have failed to report to the Immigration Centre on December 6, 2004. This failure lead to his arrest and detention. He commenced judicial review proceedings of the detention under Court file IMM-223-05, the other file to which this stay application relates.
[14] On January 11, 2005, Singh was notified that he was to be removed to India on January 20, 2005. That removal has since been postponed pending the decision on this stay application.
[15] On the same day, January 11, 2005, Singh applied for a stay of the removal order. The grounds for the stay are that (a) the Minister of Citizenship and Immigration acted inappropriately in refusing his H & C application and, (b) that the Solicitor General is holding him without just cause and contrary to the Charter. This second ground was abandoned at the oral hearing of the stay.
[16] As indicated earlier, the principal basis for the remaining ground of attack on the removal order is that the then Minister, sometime during the recent federal election campaign, agreed to secure immigration approval for him in exchange for free pizza and garlic bread delivered to her campaign office and the provision of 15-16 election volunteers. Singh also implicates the Minister's "senior policy advisor" in securing this arrangement.
[17] Singh goes on to allege that because this arrangement might become public, the Minister exercised her powers to ensure his H & C application was denied and to have him arrested and removed from Canada. It is said that these actions constitute a reasonable apprehension of bias.
[18] In support of these allegations, the Applicant filed an affidavit of his bonds person supposedly confirming the arrangement entered into with the Minister.
[19] The Respondent filed no material on this so-called arrangement. The Respondent's evidence includes the extensive history of Singh's attempts to stay in this country, his problems with the law, and his difficulties with the truth. The Respondent's evidence includes affidavits denying any interference, direction or influence being received by any of the responsible immigration officials dealing with Singh's H & C application or arrest and detention.
[20] There was no cross-examination on any of the affidavits. This leaves the Court in the position of having to decide this matter on the face of the evidence without the usual rigours of probing questions.
[21] Within hours prior to the hearing of this motion to stay, the Applicant's counsel sought leave of the Court to be removed as counsel. Prothonotary Lafrenière denied that request. Counsel is to be commended for her argument in this matter, given the circumstances of Singh's case.
ISSUES
[22] The sole issue in this application for a stay is whether the Applicant has met the tripartite test for injunctive relief, often referred to as the "Toth" test:
a) whether there is a serious issue raised;
b) whether the Applicant would suffer irreparable harm if injunctive relief is not granted;
c) whether the balance of convenience favours the Applicant.
(See Toth v. Canada (Minister of Citizenship and Immigration), [1989] 1 F.C. 535 (F.C.A.))
ANALYSIS
Serious Issue
[23] While an applicant for a stay need only meet a low threshold to establish a "serious issue", nevertheless there must be a prima facie credible basis for the establishment of the issue.
[24] The Applicant relies, particularly, on three events described in the Respondent's affidavits to establish that there is a basis for the allegation of reasonable apprehension of bias arising from the so-called arrangement. The first is that in June, 2004, at about the time of the election, no warrant was issued against Singh, even though a request for a warrant had been made. The second is that in November, 2004, the officer deciding the H & C application was contacted by the Removals Officer to determine when the H & C application would be decided. The third was contact from the Case Management Office in Ottawa to the H & C Officer requesting information to be sent for a briefing of the Minister's office on the status of the file.
[25] In determining whether the Applicant has established a serious issue, on the record as it exists now, it is important to bear in mind the test for reasonable apprehension of bias:
. . . the apprehension of bias must be a reasonable one held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information . . . that test is "what would a informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. . . .
(See Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369 at 394.)
[26] With respect to the basic allegation that the then Minister had her own reasons to ensure Singh's removal, the Respondent has not filed an affidavit rebutting those allegations. This is troubling but not fatal.
[27] While Justice Reed was speaking of an administrative decision-maker, her conclusion that a decision-maker does not have to accept affidavit evidence merely because the affiant has not been cross-examined, applies to courts as well. (Bath v. Canada (Minister of Citizenship and Immigration, [1999] F.C.J. No. 1207.)
[28] While a presumption of credibility exists, the specific affidavit must be assessed in light of the evidence as a whole. The question is whether the affidavit evidence accords with common sense. In analyzing the issue, the Court considers whether the affiant has an interest in the outcome of the case; whether the affiant has been found to be credible in the past; whether there is other evidence which casts doubt on the affiant, and whether the evidence make sense.
[29] In Singh's circumstances, it is clear that he has fought tenaciously to stay in Canada and lost virtually every immigration proceeding; his evidence in this Court and elsewhere has been found to be unreliable; the evidence of the Respondent's officials is inconsistent with Singh's central thesis.
[30] The essence of Singh's case is that an experienced politician would risk her career, her reputation and legal sanctions, to assist a person whom she does not know, in exchange for free pizzas and a few election volunteers and that the matter would forever remain secret. This thesis does not make common sense.
[31] The Applicant filed what is alleged to be confirmatory evidence from his bonds person. That evidence contains significant differences on material matters and is of no obvious assistance to the Applicant.
[32] Furthermore, there is no other evidence which is in any way confirmatory. The affidavit evidence of the immigration officials specifically deny that there was any influence or interference from anyone much less from the Minister or her office.
[33] The Applicant says that the failure to issue a warrant during the election campaign raises questions. While it may raise questions, the Applicant had an opportunity to cross-examine and explore any questions he had. The Applicant's questions at this point are mere speculation.
[34] The Applicant suggests that there is something improper in the Removal Officer contacting the H & C Officer with respect to the timing of the H & C decision. In these circumstances, where there were already existing removal orders, there is no apparent inappropriate conduct. There is nothing yet established that the decision was expedited or influenced in any manner.
[35] In similar manner, the evidence confirms that contact between Ottawa and a field officer for a briefing on a file is not unusual, particularly where a matter has become high profile.
[36] Taking all the evidence put forward and considering the factors previously mentioned, Singh's story does not accord with common sense - it lacks the "ring of truth" necessary to establish the low threshold of serious issue.
[37] The conclusions reached on the record as it currently stands do not render the leave for judicial review moot. The record which may exist when the Court considers that matter may be different or cast in a different light. The Applicant has a pending leave for judicial review, the impact of his removal must be considered in that context.
Irreparable Harm
[38] Even if the Applicant had established a serious issue, the Court is not satisfied that he has established irreparable harm.
[39] The principal harm alleged, if Singh is removed, is that he will have difficulty conducting his ongoing litigation. However, this Court has consistently held that removal does not affect the right to pursue leave for and judicial review (if granted).
[40] The Applicant has not established any practical difficulties in conducting the litigation from outside Canada. To the extent that any difficulties arise, the Applicant's proceedings are under case management where effective and expeditious resolution can be fashioned.
[41] The other areas of harm alleged, being business interruption, health concerns and family separation, are all natural consequences of a deportation. (See Selliah v. Canada (Minister of Citizenship and Immigration, [2004] F.C.A. 261). If Parliament had intended to eliminate these natural consequences of deportation, it could have enacted automatic stay requirements upon filing leave for judicial review. It did not.
Balance of Convenience
[42] The Court further finds that the Applicant has not established that the balance of convenience favours the Applicant remaining in Canada.
[43] The Applicant claims that the public interest favours a temporary stay because of the nature of the allegations and their impact on the integrity of the immigration system.
[44] The Supreme Court of Canada in RJR-MacDonald Inc. v. Canada, [1994] 1 S.C.R. 311 referred to public interest considerations being relevant where injunctive relief is sought in a public law context. The Supreme Court held that where an applicant relies on the public interest, the applicant must establish that public interest is in its favour.
[45] In the Court's view, mere allegations are not sufficient to establish that there is a public interest in further delay. The integrity of the immigration system is sufficiently challenged already by the numerous delays in Singh's removal. These past delays reflect adversely on the system and the speedy resolution of Mr. Singh's case is in the public interest.
[46] Therefore the public interest and balance of convenience favour the enforcement of the removal order at the earliest opportunity.
CONCLUSION
[47] For all these reasons, this application for a stay will be dismissed.
(s) "Michael L. Phelan"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-223-05
STYLE OF CAUSE: HARJIT SINGH v. THE SOLICITOR GENERAL OF CANADA
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 27, 2005
REASONS FOR ORDER: THE HONOURABLE MR. JUSTICE PHELAN
DATED: February 1, 2005
APPEARANCES:
Ms. Wennie Lee FOR THE APPLICANT
Mr. David Tyndale FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Lee and Company
Toronto, Ontario FOR THE APPLICANT
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT