Date: 20040126
Docket: IMM-543-04
Citation: 2004 FC 120
Ottawa, Ontario, the 26th day of January, 2004
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
M.
Applicant
and
THE SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] By this motion, the applicant seeks an order to stay the execution of the removal order against the applicant pending :
a) the determination of the application for leave and judicial review in this case; and
b) a decision on the outstanding application for permanent residence and humanitarian grounds.
[2] The underlying application for judicial review in this matter is an application for leave and judicial review of a negative decision of a pre-removal risk assessment, which was communicated to the applicant by letter dated September 22, 2003. The applicant is also waiting a decision on his application for permanent residence on humanitarian grounds.
[3] Upon reading the material before the Court and upon hearing counsel for the parties by telephone conference, I am satisfied that the applicant meets the tripartite test in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.).
SERIOUS ISSUE
[4] Numerous serious issues have been alleged by the applicant. I am persuaded that one of them meets the low threshold of the first element in Toth, supra. In the case at bar, the pre- removal risk assessment officer refused the applicant's application by letter dated March 18, 2003. This Court, on consent, set aside this negative pre-removal risk assessment. The same officer rendered a decision on September 22, 2003 and although he had invited the applicant to comment his opinion on July 23, 2003, I am persuaded that the issue of "bias" is a serious issue.
IRREPARABLE HARM
[5] The applicant is almost 69 years old, a citizen of Iran and a former SAVAK agent, who worked under the regime of the Shah of Iran and fears that if he is returned, he risks torture and death. He came to Canada in 1997. Both he and his wife were denied refugee status. He was excluded (IMM-1689-01) and his leave application was denied. This Court granted leave and judicial review, on consent of the respondent, for the wife's claim. The Board, on reconsideration, determined his wife to be a Convention refugee. Her claim had been made on her husband's application.
[6] The applicant meets the second element because of his former employment with SAVAK, his allegations of risk of torture and death, the documentary evidence, and the allegations from his wife, at page 103 of the applicant's record :
[...] My fear was always that the Islamic Committee would find my husband and harm him or kill him. [...]
BALANCE OF CONVENIENCE
[7] Given my conclusion on the questions of serious issue to be tried and irreparable harm, I am satisfied that the balance of convenience favors the applicant.
ORDER
THIS COURT ORDERS THAT this motion for a stay of removal is allowed until the final disposition of the underlying application.
"Michel Beaudry"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-543-04
STYLE OF CAUSE : M.
and
THE SOLICITOR GENERAL OF
CANADA
PLACE OF HEARING : Ottawa, Ontario by teleconference
DATE OF HEARING : January 26, 2004
REASONS FOR ORDER
AND ORDER BY : THE HONOURABLE MR. JUSTICE BEAUDRY
DATED : January 26, 2004
APPEARANCES :
David Matas FOR THE APPLICANT
Sharlene Telles Langdon FOR THE RESPONDENT
SOLICITORS OF RECORD :
David Matas FOR THE APPLICANT
Winnipeg, Manitoba
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario
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