TRABELSI, BELHASSEN Applicant v. THE MINISTER OF, 2016 FC 585

Date: 20160526 Docket: IMM-2057-16 Citation: 2016 FC 585 [UNREVISED ENGLISH CERTIFIED TRANSLATION] Montréal, Quebec, May 26, 2016 PRESENT: The Honourable Mr. Justice Roy BETWEEN:TRABELSI, BELHASSENApplicantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATION and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESSRespondents ORDER AND REASONS [1] This application for a stay arrived at this Court in a rather strange manner. The applicant, Belhassen Trabelsi, is the subjectof a removal order to be enforced on May 31 to return him to his country of citizenship, Tunisia.

It follows an application for a pre-removal risk assessment (PRRA) which resulted in a negative decision on April 14, 2016. [2] This negative decision was the subject of an application for leave to seek judicial review on May 17. This application forjudicial review has not yet been addressed. The application for a stay was made under

section 18.2 of the Federal Courts Act, R.S.C.1985, c. F-7. The applicant must therefore satisfy the Court with regard to the three-part test set out in RJR-MacDonald Inc. v. Canada(Attorney General), (SCC), [1994] 1 SCR 311; Toth v. Canada (Minister of Employment and Immigration), (FCA), 86 NR 302 (FCA).: 1. Is there a serious issue to be tried in the underlying judicial review? 2. Would the applicant suffer irreparable harm if removed from Canada? 3. Does the balance of convenience favour the applicant? Each component of the test must receive a positive response for the stay to be granted. I.

Preliminary questions [3] By the very admission of counsel for the applicant, the applicant cannot be found. With commendable candor, this counselsubmitted an affidavit in which he declared that [translation] “the client can no longer be contacted.” The client also failed to completethe affidavit in support of the application for a stay. After the hearing for the application for a stay, the Court was warned by counsel forthe respondent that the applicant did not appear for the meeting set by the Canada Border Services Agency for the afternoon of May 24,2016.

Counsel other than that acting in this application for a stay but representing the applicant’s interest in other proceedings indicatedthat the applicant could not be found. [4] An application for a stay requires the person to appear before the Court with clean hands, in good faith, and with an attitudebeyond reproach. [5] I can only conclude that the applicant failed to act in good faith when he did not sign the affidavit in support of the groundsupon which a stay should be granted in his case.

In fact, it is not even clear whether he will submit to the removal order against him if itis not suspended, since he currently cannot be found and his only communication seems to be with a Tunisian lawyer.

Brown and Evans,in their Judicial Review of Administrative Action in Canada (Carswell, loose-leaf), succinctly describe the nature of the Court’s power: Of course, being both discretionary and an equitable remedy, it may be denied where the applicant does not come to court with “cleanhands”. [6:2130] [6] Someone who wishes to benefit from an equitable remedy like a stay must at least establish the facts supporting theapplication. The applicant must attest to the irreparable harm, especially if health reasons are invoked. Instead, we have an argument

from counsel for the applicant, which is eloquent but is not founded on facts established by the applicant. This lack of evidence is clearlyvery problematic. [7] Also troubling is the applicant’s absence. His whereabouts are unknown, though he verbally communicated with a Tunisianlawyer to give a mandate to counsel now representing the applicant’s interests in his application for a stay. The scant evidence forirreparable harm and the argument based on that evidence are, so to speak, non-existent, as the applicant did not cooperate. Theapplicant’s attitude is far from beyond reproach. Mr.

Justice Nadon, of the Federal Court of Appeal, wrote in Baron v. Canada (Ministerof Public Safety and Emergency Preparedness), [2010] 2 FCR 311, 2009 FCA 81, at paragraph 65, that “neither enforcement officers northe courts, for that matter, should encourage or reward persons who do not have ‘clean hands.’” [8] In my mind, this suffices to dismiss the application for a stay. But there is more; after reviewing the case and hearing fromcounsel for the parties, I must conclude that no part of the three-part test has been met. II. Merit of the stay [9] Since the applicant was excluded under

section 98 of the Immigration and Refugee Protection Act, S.C. 2001,

chapter 27, therisks associated with his removal from Canada were assessed for the first time as part of the PRRA application. The decision, which wasvery sophisticated and well-developed, was rendered without the applicant presenting any arguments to the administrative decision-maker.

Upon reading the PRRA decision, one cannot help but be struck by its fairness despite the lack of evidence or even arguments.Suffice it to say that after a fairly long hearing, the Refugee Protection Division found that there were serious grounds to believe that theapplicant had committed crimes of common law in Tunisia corresponding to fraud, fraud on the government and money laundering.Mr. Trabelsi therefore cannot seek status as a refugee or person in need of protection. The application for leave to seek judicial reviewwas denied (section 72 of the Act).

Even though the applicant failed to present evidence or articulate an argument, the PRRA decisionstill involved a pre-removal risk assessment because the risk had not been assessed by the Refugee Protection Division. [10] The application for a stay depends on the application for leave to seek judicial review from the PRRA decision.

First, theapplicant must satisfy this Court that there is a serious issue to be tried before the Federal Court if leave for judicial review is granted. [11] The burden of proof falls on the applicant not only when making an application for a stay, but also before the PRRA decision-maker. Mr. Justice Mainville, when he was on this Court, wrote the following in Mandida v. Canada (Citizenship and Immigration),2010 FC 491 at paragraph 30: [30] In a pre-removal risk assessment, it is the applicant who bears the burden of proof. The standard of proof is the balance ofprobabilities.

Thus, the Applicant in this case had the burden of proving, on a balance of probabilities, that she would be at risk ofpersecution, torture, to life or of cruel or unusual treatment or punishment if she returned to Ethiopia: Bayavuge v. Canada (Minister ofCitizenship and Immigration), 2007 FC 65 , 308 F.T.R. 126, [2007] F.C.J. No. 111 (QL) at para. 3; Ferguson v. Canada(Minister of Citizenship and Immigration), 2008 FC 1067 , [2008] F.C.J. No. 1308 (QL) at paras. 20-21; Guergour v. Canada(Minister of Citizenship and Immigration), 2009 FC 1147 , [2009] F.C.J. No. 1417 (QL) at para. 6.

For reasons that remain unexplained, the evidence before the PRRA decision-maker was painfully inadequate. [12] The PRRA decision-maker noted that the [translation] “submissions” promised when the applicant applied for a pre-removalrisk assessment were never received. The decision-maker looked into whether they had, in fact, been sent. They had not.

All that hadbeen received were documents from February 8, February 26, and March 4, 2016. [13] Of these three items, only the one from March 4 is useful for our purposes; those from February 8 and 26 are of no interest.As for the document from March 4, it included documents related to the applicant’s medical situation. The PRRA decision states: [translation] “In this email, the applicants’ representative wrote: ‘You will note that two of our client’s brothers did not receive medical care while inpreventive detention in Tunisia.

We submit that this would be the case for Belhassen Trabelsi [the applicant] as well.’ These are the onlyallegations made by the applicant or the applicant’s representative in the context of this PRRA.” [page 4] [14] No further evidence from the applicant was received. Despite the burden of proof that lay on him, the applicant was contentto oppose the PRRA decision-maker, who chose to examine the applicant’s situation based on the file as it was compiled, rather thanrejecting the application due to lack of evidence or argument.

In other words, having failed to present positive evidence, the applicantsought to find fault with the PRRA decision-maker’s reasoning to provide an argument for the applicant, which he had not done himself.The PRRA decision-maker, in fact, probably articulated the best possible argument that could be made with the sparse evidence in thiscase. [15] The applicant alleged that he would be deprived of the healthcare that he needs if he were returned to Tunisia (memorandumof fact and law, paragraph 18). This is exactly the angle that the PRRA decision-maker examined.

Below are three paragraphs takenfrom Covarrubias v. Canada (Minister of Citizenship and Immigration), [2007] 3 FCR 169, 2006 FCA 365, which address the paragraphof the Act that merits review in our case: [31] Having considered the parties’ arguments and the limited authorities, I am of the view that the provision in issue is meant to bebroadly interpreted, so that only in rare cases would the onus on the applicant be met.

The applicant must establish, on the balance ofprobabilities, not only that there is a personalized risk to his or her life, but that this was not caused by the inability of his or her countryto provide adequate health care. Proof of a negative is required, that is, that the country is not unable to furnish medical care that is

adequate for this applicant. This is no easy task and the language and the history of the provision show that it was not meant to be. [39] This is not to say that the exclusion in subparagraph 97(1)(b)(iv) should be interpreted so broadly as to exclude any claim in respectof health care. The wording of the provision clearly leaves open the possibility for protection where an applicant can show that he faces apersonalized risk to life on account of his country’s unjustified unwillingness to provide him with adequate medical care, where thefinancial ability is present.

For example, where a country makes a deliberate attempt to persecute or discriminate against a person bydeliberately allocating insufficient resources for the treatment and care of that person’s illness or disability, as has happened in somecountries with patients suffering from HIV/AIDS, that person may qualify under the section, for this would be refusal to provide the careand not inability to do so.

However, the applicant would bear the onus of proving this fact. [43] Subsection 100(4) of the IRPA provides that the burden of proving that a person is eligible to make a claim for refugee protectionrests on the claimant. Accordingly, for the male appellant to meet the requirements of

section 97 (so as to be eligible to make a claim forrefugee protection), he was required to prove that should he be removed to Mexico, his removal would subject him personally to a dangerof torture or a risk to his life or a risk of cruel and unusual treatment or punishment. In establishing a risk to his life, the appellant wasrequired to prove that, among other things, his claim was not barred by the application of the exclusion in subparagraph 97(1)(b)(iv).

Inother words, the appellant was required to prove, on the balance of probabilities, that his risk to life was factually not caused by theinability of Mexico to provide the medical care he requires. These are also the paragraphs cited in the PRRA decision. [16] Based on a very generous analysis of the conditions described in this judgment, the PRRA decision-maker found that medicalcare would be necessary for a depressive state, a cardiac situation, and a nodule discovered on the prostate, despite the fact that themedical evidence was scarce and lacking in description or details.

In addition, Tunisia is able to provide the required treatment.However, the conclusion reached in the PRRA decision was that the situation in Tunisia is such that the applicant would not be deprivedof the medical assistance he requires: [translation] “I find that the applicant has not shown that, if he returns to Tunisia and is detained, hewill not be able to receive the medical care normally available in Tunisia” (decision, p. 13). It was up to the applicant to prove that hewould be subject to a risk to his life.

What was attempted through judicial review was to reverse the burden of proof, such that it wouldbe up to the PRRA decision-maker to prove that there would not be a risk to the applicant’s life. This attempt is destined to fail. [17] If leave to seek judicial review is granted, the applicant must show the existence of a serious issue.

However, he has in no wayestablished the risk of unusual treatment, as argued by his counsel during the hearing for the application for a stay, where the risk of suchunusual treatment is not caused by the inability of that country to provide adequate health or medical care (subparagraph 97(a)(b)(iv) ofthe Act). The applicant did not provide any evidence of this whatsoever. On the contrary, the applicant attempted to show that thechanges that had occurred in Tunisia that were mentioned by the PRRA decision-maker were perhaps not as well established as somemight have liked.

As a result, there was a risk of not receiving treatment. This is pure speculation, far beyond the balance of probabilitiesstandard (Li v. Canada (Citizenship and Immigration), 2003 FC 1514 , [2004] 3 FCR 501; 2005 FCA 1 , [2005] 3 FCR239; Covarrubias cited above). There is no serious issue to be debated through judicial review of the PRRA decision, given the lack ofevidence from the applicant, on whom the onus fell to demonstrate the evidence on a balance of probabilities. [18] The applicant claimed that the case also included allegations other than those related to his medical condition.

He reproachedthe PRRA decision-maker for not having reviewed allegations, which, according to the evidence, were never made. This argument is ofno merit. [19] Those allegations were presented as an exhibit to the applicant’s affidavit, which he did not sign and which was not certified.There is therefore no affidavit and no proposed [translation] “submissions.” Furthermore, the [translation] “submissions” are alsounsigned. That is enough to dispense with the issue. I also considered the merits of these allegations.

They are all without merit in thecontext of a PRRA. [20] I find it rather unusual to try to hold against the PRRA decision-maker the fact that he did not consider [translation] “impliedsubmissions” regarding the applicant’s vulnerability, which, apparently, could have been found in the file. Here again, the applicant isbehaving as though the burden of proof lay somewhere other than with him. He needed to satisfactorily show that he is a person in needof protection within the meaning of

section 97 of the Act. The applicant should be complaining about the absence of[translation] “submissions” and evidence. Therefore, the blame lies only with him. [21] The applicant has not made any presentations in connection with irreparable harm. The comments presented were related tothe fact that the applicant was convicted in absentia in Tunisia and that he will be detained on his return. Nothing more. Irreparable harmconstitutes a distinct test. The absence of evidence and arguments alone would have doomed it. [22] The same goes for the balance of convenience.

There is undeniable and substantial public interest in having people withoutstatus leave the country as soon as possible after a removal order becomes enforceable (section 48 of the Act). In this case, the applicanthas filed an application for a stay without confirming the alleged facts and, in addition, he has disappeared to the point where his counselsays he cannot be found. Given the state of the case, the balance of convenience must favour the Minister.

Even the fact that theapplicant is leaving his family in Canada cannot work in his favour because he has disappeared. [23] Consequently, the application for stay of the removal order must be dismissed. ORDER THE COURT ORDERS that the application for stay of the removal order to be enforced on May 31, 2016 be dismissed. “Yvan Roy”

Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-2057-16 STYLE OF CAUSE: TRABELSI, BELHASSEN v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: May 24, 2016 ORDER AND REASONS: ROY J. DATED: May 26, 2016 APPEARANCES : Jean-François Bertrand For the applicant Daniel Latulippe For the respondents SOLICITORS OF RECORD : Bertrand Deslauriers Montréal, Quebec For the applicant William F. Pentney Deputy Attorney General of Canada Montréal, Quebec For the respondents