Toronto, Ontario, August 28, 2006
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] The Court has heard the applicant’s stay of removal on an urgent basis, set for tomorrow, August 29, 2006.
BACKGROUND
[2] Mr. Jong Scon Kim is a 45 year old citizen of the Republic of Korea, born 19 December 1960. The applicant’s spouse and two children are in Canada; however their Pre-Removal Risk Assessment (PRRA) eligibility has not been clearly established at this time.
[3] The applicant states that he arrived in Canada in February 2000 and he initiated a claim to Convention refugee status in March. The Immigration and Refugee Board (IRB) determined that he was not a convention refugee on 13 July 2001 (Immigration and Refugee Board, CRDD Notice of Decision TAO-12872 dated 13 July 2001) and the Federal Court denied his application for leave on 01 November 2001. His application under the Post-determination-refugee-claim-in-Canada (PDRCC) class was denied in January 2002. The applicant subsequently failed to appear for a removal interview and a warrant was issued. He eluded immigration until he came to CBSA’s attention following a police traffic stop in May 2006.
[4] At the IRB, the applicant advanced a claim based on problems arising from his participation with a labour union and a radical student organization. The panel found him lacking in credibility and determined that his story was a fabrication meant to bolster his claim.
[5] The risks identified in the PRRA are different than those advanced to the IRB. The new risks relate to difficulties the applicant encountered in 1999 when, following the national financial crisis in 1997, he lost all his assets and accrued debts with credit card companies. He states he was harassed and threatened by credit card companies for payment.
[6] The applicant did not provide evidence that he is in debt to credit card companies in South Korea. The applicant has provided a copy of a document titled Household Register of an Expunged Person. This copy was issued on 17 May 2006, one day after he signed his PRRA application and demonstrates the applicant’s ability to secure documentation from South Korea. This document indicates that his status was cancelled as of 30 May 2001 “due to disappearance”.
[7] The household registration system (Hojuk) was released in 2005. The applicant has not provided objective evidence that upon his return home he would be required to register or that given the country’s privacy laws, the government would be willing to share this information with private companies. Even if credit card companies obtained information on the applicant’s whereabouts, the evidence did not persuade the PRRA officer that their inquiries would amount to anything.
[8] This new evidence was fully considered but rejected by the PRA officer due to lack of evidence of the applicant and in consideration of country conditions in South Korea.
[9] Even if the Court were to assume that the application raises a serious issue to be tried, the applicant has failed to adduce sufficient evidence to establish that he would suffer irreparable harm by reason of his deportation to South Korea.
[10] The Applicant’s motion for a stay cannot succeed as he does not satisfy the tripartite Toth test. Toth v. Canada (Minister of Employment and Immigration), [1988] F.C.J. No. 587 (QL), wherein Justice Heald stated at p. 305:
Having concluded that this Court does have jurisdiction to grant the stay asked for herein, it becomes necessary to determine the appropriate tests to be applied in the exercise of that jurisdiction. In the decision of the Supreme Court of Canada in the case of Attorney General of Manitoba v. Metropolitan Stores (M.T.S.) Ltd., et al [1982] 1 S.C.R. 110, Beetz J. speaking for the Court stated at p. 127:
A stay of proceedings and an interlocutory injunction are remedies of the same nature. In the absence of a different test prescribed by statute, they have sufficient characteristics in common to be governed by the same rules and the Courts have rightly tended to apply to the granting of interlocutory stay the principles which they follow with respect to interlocutory injunctions.
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 [Footnote 3 appended to judgment]. 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, favours
the order.
[11] In the circumstances, his application must be dismissed.
ORDER
THIS COURT ORDERS that the application for stay of removal be dismissed.
“Michael M. J. Shore”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4618-06
STYLE OF CAUSE: JONG SEON KIM
v. THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: August 28, 2006
APPEARANCES:
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Ms. Wennie Lee
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Mr. John Provart
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SOLICITORS OF RECORD:
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LEE & COMPANY/BARRISTERS North York, Ontario
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JOHN H. SIMS, C.R. Deputy Attorney General
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