[2002] 2 F.C. 73
IMM-2736-01
2001 FCT 1017
Amr Adel (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Adel v. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Pelletier J.—Ottawa and Montréal (teleconference), July 30; Ottawa, September 13, 2001.
Citizenship and Immigration — Exclusion and Removal — Immigration Inquiry Process — Application to stay removal order brought same day order to be executed — Court deciding to hear application — When application to stay on ground no assessment of risk of return, and risk of return based solely on applicant’s allegations, judge must be satisfied reason for concern about applicant’s fate — Court may decide questions of credibility, even in context of application to stay removal order, but must exercise prudence, maintain certain reserve as opportunities for careful analysis of evidence frequently lacking — But when evidence giving rise to some serious questions of credibility, Court should not ignore possibility of bad faith — Burden on applicant to file trustworthy evidence — Evidence submitted herein not trustworthy — As serious question to be decided, irreparable harm (both requirements for stay) depending solely on applicant’s credibility, test for granting stay not satisfied.
This was an application for a stay of removal. The applicant is a citizen of Egypt who has been living in the United States since 1999. On May 18, 2001 he entered Canada to pick up a friend at Dorval airport. At the United States border, the two men declared that they were American citizens. Suspicions were aroused, and the applicant was charged with attempting to bring people illegally into the United States. Sent back to the Canadian border, the applicant was questioned by an immigration officer, whose notes said that the applicant had inquired about claiming refugee status, but stated that his life was not in danger in Egypt, so he did not want to claim. An exclusion order was issued on May 20. Two days later the applicant completed the notification claim to be a Convention refugee. The Refugee Division determined that it had no jurisdiction to deal with his claim because the exclusion order had already issued. He applied for judicial review of that decision and of the exclusion order. The applicant was released on May 27 and went to Montréal where he met a woman whom he married on July 20, 2001. Meanwhile he had been advised on July 9 that he was to leave Canada on July 30. The application for the stay was filed on the morning of July 30, and the hearing was held that same day. The application for a stay was based on the fact that the applicant did apply for refugee status during his interrogation by the immigration officer, or before the exclusion order was issued, and that consequently the Refugee Division had jurisdiction to hear his claim. The respondent alleged that the applicant lacked credibility, and submitted that it was unreasonable to wait until the last minute to initiate an application for a stay.
The applicant stated that he had left Egypt after two years of arrests and torture by the national security service because of his political activities while a student. But he returned to Egypt to visit his father who had undergone surgery in April 2000. When he arrived in Cairo he was turned over to the national security service, interrogated, and beaten for three days. Upon his release he went to his parents’ home but was afraid to go out. He attempted to leave Egypt on April 28, but was prevented from so doing. With the intervention of his father, he succeeded two days later. Upon his return to the United States, he bought a house and a car, and became engaged to be married.
Held, the application should be dismissed.
Notwithstanding the delays in the proceedings, the Court chose to hear the applicant because otherwise he would be returned, without any assessment of his situation, to Egypt where he fears inhuman treatment.
The test for granting a stay is whether there is a serious question to be tried; whether there will be irreparable harm to the applicant if the application is not granted; and whether the balance of convenience favours the applicant. The serious question to be tried was whether the applicant had claimed refugee status before the exclusion order was issued. This was a question of credibility.
Generally, the judge hearing an application to stay is not, considering the state of the record, in a position to determine issues of credibility. But when the judge agrees to hear an application to stay on the ground that there was no assessment of the risk of return, and that the risk of return is based solely on the applicant’s allegations, the judge must be satisfied that there is reason for concern about the fate of the applicant. A judge may decide questions of credibility, even in the context of an application to stay a removal order, but must exercise prudence and maintain a certain reserve since opportunities for a careful analysis of the evidence may frequently be lacking. When the evidence before the Court gives rise to some serious questions of credibility, the Court should not ignore the possibility of bad faith solely on the ground that others would be in a better position to assess credibility. The burden on the applicant includes that of filing trustworthy evidence with the Court.
The evidence submitted herein was not trustworthy. The fact that the applicant stayed in the United States for more than a year without claiming refugee status undermined his credibility. That he voluntarily returned to Egypt was inconsistent with a fear of persecution. His marriage to a Canadian citizen whom he had known for barely two months, 11 days before the date scheduled for his return, in itself raised some questions, but when added to that the fact that he was about to marry an American, the bona fides of the marriage is in doubt. Further doubts were raised by the fact that during the period when the applicant was allegedly afraid to leave his parents’ house in Egypt, he obtained a visa and had his passport extended. Given that the serious question to be decided and the irreparable harm both depended solely on the applicant’s credibility, and given the applicant’s lack of credibility, the test for granting a stay was not satisfied.
CASES JUDICIALLY CONSIDERED
Applied:
Nayci v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1741 (T.D.) (QL); Palencik v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1138 (T.D.) (QL); Desorgues v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 157 (T.D.) (QL); Shaikh v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 87 (T.D.) (QL); Dovgan v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 789 (T.D.) (QL).
Referred to:
Vaccarino v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 518 (T.D.) (QL); Carling v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 2086 (T.D.) (QL).
APPLICATION for stay of removal. Application dismissed.
APPEARANCES:
Jeannine Landry for applicant.
Michel Pépin for respondent.
SOLICITORS OF RECORD:
Jeannine Landry, Montréal, for applicant.
Deputy Attorney General of Canada for respondent.
The following is the English version of the reasons for order delivered orally by
[1] Pelletier J.: At the conclusion of the hearing on this application, I dismissed the application for a stay for reasons which I gave orally. These oral reasons are repeated in what follows and supplemented by the inclusion of the facts and other points that were the subject of discussion during the hearing, matters which were not included in the reasons I gave at the hearing.
[2] Mr. Adel is a citizen of Egypt who has been living in the United States since 1999. He holds a work permit and a visa which enable him to live and work in the United States. He says he is employed with a salary of US$80,000 per year. For reasons which are not obvious, on May 18, 2001, he crossed the Canadian border on his way to Dorval airport where he met a friend, Nasser Elbrolosy. Mr. Elbrolosy does not have a U.S. visa. On the same day, the two men reported at the U.S. border and declared themselves American citizens. Mr. Adel presented his driver’s licence from the State of Illinois as proof of citizenship. The result of this was simply to arouse suspicions in the U.S. immigration service. If the two travellers were surprised by this reaction, they were surely the only ones. The two were refused entry to the United States, and in addition Mr. Adel was charged with attempting to bring people illegally into the United States, a charge on which he is to appear in Buffalo on July 31, 2001.
[3] Sent back to the Canadian border, Mr. Adel was questioned by an immigration officer, Ann Joly. During this discussion, the topic of refugee status was raised. Here is what Ms. Joly says on the matter:
[translation] Mr. Adel acknowledged the errors he committed. He was also very cooperative during the interview. He tried to find out the possible ways in which he would be able to stay in America. However, he has no family or friends in Canada. His links with Canada are virtually nil. In desperation, he considered claiming refugee status in Canada. The possible consequences of such action were explained to him. Moreover, he stated that his life was not in any danger in Egypt, although possibly his career was. So he does not want to claim. He is thinking of filing a PRA [permanent residence application] for Canada upon his return from Egypt, although his intention is clearly to return to the United States.
[4] Mr. Adel, for his part, says he did claim refugee status but that his claim was not taken seriously. He points to the passage quoted above and comments that there would have been no reason to talk about refugee status if he had not raised the subject.
[5] In any event, at the conclusion of the interrogation, officer Joly recommended to the senior immigration officer that an exclusion order be issued in regard to Mr. Adel and that he be placed in custody.
[6] On May 20, 2001, the senior officer, Mélanie Laroche, adopted Ms. Joly’s recommendations and issued an exclusion order and an order that he be placed in custody. On May 22, 2001, Mr. Adel completed the notification of claim to be a Convention refugee. The Refugee Division determined that as a result of the exclusion order issued on May 20, 2001, it had no jurisdiction to deal with his claim. He filed an application for leave and for judicial review of this decision on June 9, 2001, having earlier, on June 1, 2001, filed an application for leave and for judicial review of the exclusion order issued against him.
[7] Mr. Adel was released on May 27, 2001 and went to Montréal. There, he met with “[translation] a marvellous young woman”, a Canadian citizen who, in his o pinion, is “the ideal wife”. She likewise found him to her taste and they were married in Montréal on July 20, 2001. Meanwhile, on July 9, 2001, the investigations and removals service of the Department of Citizenship and Immigration notified Mr. Adel that he was to leave Canada for Egypt on July 30, 2001. His solicitor did not manage to file an application for a stay of execution of the removal order until the morning of July 30, 2001 owing to vacations and certain other delays in the preparation of the records. The hearing was held that same day, at 3:30 p.m. Mr. Adel was required to be at Dorval airport at 6:15 p.m. that day.
[8] A central issue in the application for a stay is the risk of inhuman treatment awaiting Mr. Adel should he return to Egypt. According to his account, when he was an engineering student at Cairo university, he was one of the founders of a student movement bearing the name “The Engineering Political Group”, which contested elections for a position in the leadership of the student union. The authorities took a dim view of their progressive program and, following their electoral victory, the founders were arrested and tortured by the national security service. This continued for two years, during which Mr. Adel was arrested and beaten several times, experiences which convinced him that he would be better off leaving Egypt. He obtained an Egyptian passport and a visitor’s visa to the United States. In June 1999, he went to America where he immediately began looking for a job. His superior skills got him a job and with the sponsorship of his employer he obtained a work permit, which was granted to him on March 17, 2000.
[9] In April 2000, his father underwent surgery for a prostate problem. Mr. Adel thought he should visit his father. He reported to the Egyptian consulate in New York City to have his passport’s expiry date extended to April 30, 2000. Mr. Adel says that upon his arrival in Cairo on April 14 or 15, 2001, he was met by the civilian authorities who turned him over to the national security service. He was held for three days, during which he was interrogated about his former friends and their movement. He was accused of collecting money abroad on behalf of this movement. He was beaten when he said he had not maintained his links with his former friends after his departure from Egypt. When released, he went to his parents’ home. He says he was afraid to go out. On April 28, 2001, he tried to leave Egypt but was arrested at the airport and prohibited from leaving. He returned home and thanks to the intervention of his father, a former soldier, he returned to the United States on April 30, 2000.
[10] Upon his return to the United States, he became a full-time employee of the International Leadership University. He became the owner of a house and a car. He had a girlfriend and was about to get married. Life was good until the moment he went to Dorval to meet his friend Nasser.
[11] The application for a stay is based on the fact that Mr. Adel did indeed make an application for refugee status during his interrogation by Ms. Joly, an application she ignored. Mr. Adel disputes that a border inspector can limit the field of discussion of refugee status by asking a claimant if he risks death by returning to his country of origin. But more fundamentally, he states under oath that he claimed refugee status before the exclusion order was issued against him and that consequently the Refugee Division has jurisdiction to hear his claim. Mr. Adel says he fears imprisonment and torture if he has to go back to Egypt. He alleges that he will be met once more by elements in the national security service and that he will not come out of it as easily as he did the last time.
[12] The respondent did not have time to prepare its own affidavits but relies on the notes of the two immigration officers which are reproduced in Mr. Adel’s file. The respondent points out that Ms. Joly’s notes clearly state: “So he does not want to cl aim.” The minister further states that Mr. Adel lacks credibility, for he voluntarily returned to Egypt in April 2000. Furthermore, Mr. Adel lived in the United States for two years without claiming refugee status there. That is incompatible with a genuine fear of persecution. Finally, the respondent wonders aloud how Mr. Adel, who said he was preparing to marry in the United States, could so suddenly get married in Canada, especially when he was subject to an exclusion order.
[13] The respondent argues that Mr. Adel’s application should not be heard, given that he knew as early as July 9, 2001 that he would have to leave on July 30, 2001. It is unreasonable, the respondent says, to wait until the last minute to initiate an application for a stay when it was possible to file the application in such time as to allow the respondent to reply in a more adequate way.
[14] Counsel for the respondent invites the Court to apply the decision of Mr. Justice Strayer in Vaccarino v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 518 (T.D.) (QL), which was followed by Mr. Justice Blanchard in Carling v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 2086 (T.D.) (QL). These two judgments point to the possibility that a judge would refuse to hear an application for a stay that is filed at the last minute without valid reason.
[15] Mr. Adel’s counsel says she could not bring these proceedings earlier since she was still awaiting the notes of the immigration officers before preparing her record for the application for a stay. Furthermore, the summer vacations and the fact that she is a sole practitioner meant that she was unable to spend time on the case until the week before the date of removal.
[16] It often happens that counsel who represent immigrants are themselves consulted at the last minute by clients who live in hope that the removal date will never arrive. Moreover, the Federal Court frequently sees cases in which there is very little time between the applicant’s summons and the date of removal. What this means is that often the choice of the hearing date for such applications is outside the control of applicants’ counsel. But there are other cases in which counsel know in advance that they will have to make an application for a stay. In those cases, the Court has a hard time understanding why the application for a stay is tendered on the day before the date of removal or on the very day itself.
[17] This does not do justice to either the respondent or the Court, both of whom must comply with the applicant’s deadlines. The respondent is often unable to file its evidence in Court. The Court, for its part, must determine complex questions on the basis of an incomplete record and without the benefit of any period of reflection. The applicant claims a stay by appealing to fairness; he should grant to others what he is claiming for himself. And in this instance, fairness required that the application be presented earlier. It is surprising to me that one can have sufficient information to commence an application for leave and judicial review but be in ignorance about an application for a stay.
[18] But if Mr. Adel’s application is not heard, the result will be that an applicant who says he fears inhuman treatment in Egypt will be removed without any assessment of his situation. Notwithstanding the delays in the proceedings, the Court has chosen to hear him.
[19] The three prongs of the test for granting an order to stay are well known: a serious question to be decided, irreparable harm to the applicant if the application is not granted, and the balance of convenience must favour the applicant. In the case at bar, the serious question, namely, “Did the applicant claim refugee status before the exclusion order was issued against him?”, is a straightforward question of credibility. The applicant says yes, the immigration officer’s notes say no, and there is no affidavit by the immigration officer. Similarly, the existence of irreparable harm is basically a question of credibility. The applicant’s counsel claims that it is not for the judge hearing an application for a stay to launch into an assessment of credibility. That complex task, with its serious consequences, is reserved for the Refugee Division.
[20] Counsel for the Minister argues that the applicant lacks credibility and says the cases hold that a judge deciding an application for a stay is entitled to review the issue of credibility.
[21] When an application to stay an exclusion order is presented at the last minute, as in the instant case, certain facts must be taken into consideration. The first is that the Court may very well refuse to hear the application for the reasons set out in the Vaccarino decision, followed by Blanchard J. in Carling, supra. But if the Court is persuaded that it should hear the case, that does not mean that everything will happen in the usual way. The applicant still has the burden of satisfying the Court that he is entitled to the order he is seeking. In this instance, the burden is eased if the applicant is credible. Generally speaking, the judge hearing an application to stay is not, considering the state of the record, in a position to determine issues of credibility. But when the judge agrees to hear an application to stay on the ground that there was no assessment of the risk of return, and that the risk of return is based solely on the applicant’s allegations, the judge must be satisfied that there is reason for concern about the fate of the applicant. The fact that there are others who would perhaps be in a better position to assess the applicant’s situation does not mean that the judge hearing the application for a stay must accept everything that he is told without exercising his critical faculties.
[22] A quick search during a break in the course of the hearing of this case discloses five judgments in which the judge decided an application for a stay on the basis of an assessment of credibility. In Nayci v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1741 (T.D.) (QL), the applicant reported at the Canadian border, saying he was a visitor, but ended up admitting during his examination that he was trying to settle in Canada. He said there was no reason why he could not return to Turkey. Later, in an affidavit submitted in support of an application to stay, the same claimant, with the assistance of an “immigration consultant”, said he still intended to claim refugee status, given that he was a member of a persecuted minority. Mr. Justice Muldoon rejected the second “story” and dismissed the application for a stay.
[23] Some improbabilities in an affidavit filed in support of an application to stay created sufficient doubt in the mind of Mr. Justice Lutfy for him to dismiss the application, in Palencik v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1138 (T.D.) (QL). In Desorgues v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 157 (T.D.) (QL), Mr. Justice Pinard found there was an absence of trustworthy evidence in support of an application by a national of Algeria. In Shaikh v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 87 (T.D.) (QL), Mr. Justice Nadon said he was prepared to dismiss the application to stay in question when he found that the applicant had tried to mislead the Court by filing a false affidavit. And Mr. Justice Lemieux, in Dovgan v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 789 (T.D.) (QL), dismissed an application to stay a removal order, saying the conduct of the applicant tarnished his credibility to the point that he found no serious question to be decided in the application.
[24] The conclusion which follows from these reasons is that the Court is in a position to decide questions of credibility, even in the context of an application to stay a removal order. However, the Court must exercise prudence and maintain a certain reserve in regard to questions of credibility in such applications for a stay, when the opportunities for a careful analysis of the evidence are so frequently lacking. But when the evidence before the Court gives rise to some serious questions of credibility, the Court should not ignore the possibility of bad faith solely on the ground that others would be in a better position to assess credibility. The burden on the applicant includes that of filing trustworthy evidence with the Court.
[25] An analysis of the record in the case at bar leads to the conclusion that the evidence submitted is not trustworthy. As the respondent’s counsel notes, the fact that the applicant stayed in the United States for more than a year without claiming refugee status undermines his credibility. The fact that the applicant voluntarily return ed to Egypt in April 2000 is inconsistent with a fear of persecution. The applicant’s marriage to a Canadian citizen whom he had known for barely two months, 11 days before the date scheduled for his return, in itself raises some questions, but when we add to that the fact that, during his questioning at the border, he had said he was about to marry an American, one can only wonder whether this marriage is bona fide.
[26] A review of the applicant’s travel documents raises further doubts. In his affidavit, the applicant tells of how he was arrested and mistreated for three days at the beginning of his stay in Egypt in April 2000, and that consequently, he took refuge with his parents and was afraid to leave the house. But in the applicant’s passport there is a visa issued by the American Consulate in Cairo on April 23, 2000. The applicant would have had to leave home to obtain that visa. Furthermore, the applicant’s passport shows that its expiry date was extended to December 31, 2000 by endorsement in Cairo on April 19, 2000. The applicant would have had to report to the authorities to obtain such an endorsement. Those authorities would be ill-disposed to grant him his request given the interest the security service had in him. The applicant, who was present at the hearing of his case, explained this by saying that it all happened on account of the intervention of his father.
[27] In all of the circumstances, this explanation is not sufficient. Given all of the facts, it seems to me that the applicant provided a better explanation of his situation when he talked to the immigration officer about making an application for permanent residence once he returned to Egypt than he did in this story he filed in support of his application to stay.
[28] Given that the serious question to be decided and the irreparable harm both depend solely on the applicant’s credibility, and given the applicant’s lack of credibility, the test for granting a stay has not been satisfied. The application for a stay must be dismissed.
[29] For these reasons, the application to stay is dismissed.