EL MELIANI BEN MOUMEN Applicant v. THE MINISTER OF PUBLIC, 2013 FC 873

Date: 20130815 Docket: IMM-4800-13 Citation: 2013 FC 873 [UNREVISED ENGLISH CERTIFIED TRANSLATION] Ottawa , Ontario , August 15, 2013 PRESENT: The Honourable Mr.

Justice Shore BETWEEN: EL MELIANI BEN MOUMEN Applicant and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondent REASONS FOR ORDER AND ORDER [ 1 ] The Court has before it a motion for a stay of removal from Canada by the applicant. [ 2 ] The applicant is faced with a removal order scheduled for August 19, 2013. [ 3 ] The applicant filed an application for leave and judicial review of a refusal to defer his removal. [ 4 ] An application for permanent residence is pending following the specific events clearly described. [ 5 ] A Quebec Selection Certificate was issued on June 19, 2013, with the following note: [TRANSLATION] We wish to note that the approval of the undertaking and the issuance of the Quebec Selection Certificate does not mean obtaining permanent residence.

In fact, your sponsor and accompanying family members would need to first satisfy the health, security and criminality requirements of the Government of Canada .

[6] The Court received detailed information from the respondent in the case on the basis of the clear evidence that the applicantis inadmissible to Canada as a result of criminality. See subsections 41(

a) and 20(1)(

a) of the Immigration and Refugee Protection Act,SC 2001, c 27 (IRPA). (None of this evidence was even mentioned by counsel for the applicant.) [7] According to the respondent’s materials and the detailed evidence from the United States and Canada: Now, a search in the NCIC system came out with the result that Mr. El Meliani would have been under a four year probation order afterhaving been convicted in 2006, in the State of Pennsylvania, of one count of robbery. The warrant would have been issued for the breachof the probation after the conviction in 2006 for an event that happened in 2004.

Now, also, in 2004, he would have been convicted toconspiracy to commit a fraud in the United States for an event that would have happened in 2001. According to the Minister’srepresentative, this might represent forgery in Canada, and that is the subject of an admissibility hearing which was postponed before thisdetention review started. Now, an interview took place on the 1st of March 2010, during which Mr. El Meliani would have declared that he had been in Canadafor two years illegally. He had entered in the trunk of a car at an Ontario border crossing.

He had used people that he had met in NewYork to enter Canada. He would be the owner of two clothing boutiques in the United States. This is according to the Minister’s notes. Now, in 1993, Mr. El Meliani would have left Morocco. He would have travelled extensively in Algeria, Libya, China, Hong Kong, andI learned during this hearing that he would also have travelled to Australia. He would have been a marathon runner and a trainer. In 1996or 1997 he would have entered the United States of America, following which he would have married a U.S. citizen.

Would have appliedfor a green card, and I learned from his own testimony that he would have been a processor of a green card for two years until he had theproblems with criminality in the United States it seems. In 2001 the first charges of fraud would have happened. And in 2008 he wouldhave entered Canada. [8] Following an analysis of the test in Toth v Canada (Minister of Employment and Immigration) (1988), (FCA), 86 NR 302 (FCA), the applicant did not meet any criteria of the tripartite conjunctive test. [9] Therefore, the Court dismisses the motion for a stay.

JUDGMENT THE COURT ORDERS that the applicant’s motion for a stay is dismissed. “Michel M.J. Shore” Judge Certified true translation Daniela Guglietta, Translator FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-4800-13

STYLE OF CAUSE : EL MELIANI BEN MOUMEN v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS MOTION HEARD BY CONFERENCE CALL ON AUGUST 15, 2013, BETWEEN OTTAWA, ONTARIO AND MONTRÉAL, QUEBEC REASONS FOR ORDER AND ORDER: SHORE J. DATE OF REASONS: August 15, 2013 WRITTEN AND ORAL SUBMISSIONS BY : Anthony Karkar FOR THE APPLICANT Sonia Bédard FOR THE RESPONDENT SOLICITORS OF RECORD : Anthony Karkar Counsel Montréal, Quebec FOR THE APPLICANT William F. Pentney Deputy Attorney General of Canada Montréal, Quebec FOR THE RESPONDENT