Digests

Singh v. Canada (Solicitor General)

IMM-223-05

2005 FC 159, Phelan J.

1/2/05

12 pp.

Application for stay of removal order within application for leave to bring application for judicial review--Applications based on allegation applicant having made arrangement with then Minister of Citizenship and Immigration to have immigration problems resolved in exchange for pizzas and election volunteers, that Minister reneging on arrangement, influencing departmental officers (especially officer deciding humanitarian and compassionate (H&C) application)-- Applicant alleging circumstances raising reasonable apprehension of bias--Applicant living in Canada since 1988 without legal status--Legal history in Canada including failed refugee claim, multiple failed immigration proceedings, judicial reviews, criminal convictions in India, criminal charges in Canada, active participation in credit card fraud scheme--Applicant's sixth H&C application subject-matter of application for judicial review--Scheduled for removal to India on July 10, 2004, but failed to attend pre-removal interview--Warrant for arrest requested but inexplicably never issued--Last H&C application denied--Applicant's failure to report to Immigration Centre leading to arrest and detention-- Commencing judicial review proceedings of detention to which stay application relating--Sole issue whether applicant meeting tripartite test for injunctive relief set out in Toth v. Canada (Minister of Employment and Immigration), [1989] 1 F.C. 535 (C.A.)--(1) "Serious issue" must have prima facie credible basis--Test for reasonable apprehension of bias involving determination of what informed person, viewing matter realistically and practically, would conclude-- Respondent's failure to rebut bias allegations troubling, but not fatal--While affidavit evidence presumed credible, specific affidavit must be assessed in light of evidence as a whole--Whether affidavit evidence according with common sense--Applicant fighting tenaciously to stay in Canada, losing every immigration proceeding; evidence found to be unreliable; evidence of respondent's officials inconsistent with applicant's central thesis--Thesis relied on i.e. experienced politician would risk career, reputation, legal sanctions to assist person unknown to her in exchange for free pizzas, lacking common sense--No confirmatory evidence filed-- Questions raised by failure to issue warrant during election campaign mere speculation--Evidence not establishing H&C decision expedited or influenced in any manner, confirming contact between Ottawa and field officer for file briefing not unusual when high profile matter involved--Applicant's story not according with common sense; lacking "ring of truth" necessary to establish low threshold of serious issue-- (2) Applicant not establishing existence of irreparable harm if relief not granted--Principal harm alleged difficulty in conducting ongoing litigation from outside Canada--Not establishing any practical difficulties--Other harm alleged, such as business interruption, health concerns, family separation, natural consequences of deportation--(3) Applicant not establishing balance of convenience favouring stay--Claiming public interest favouring temporary stay because of nature of allegations, impact on integrity of immigration system--Supreme Court holding where public interest relied on, applicant must establish public interest in applicant's favour--Mere allegations insufficient to establish public interest favouring further delay in removal--Past delays reflecting adversely on system--Speedy resolution of applicant's case in public interest--Public interest and balance of convenience favouring enforcement of removal order at earliest opportunity--Application dismissed.