Mirzaei v. Canada (Minister of Citizenship and Immigration), 2004 FC 373

Date: 200403011

Docket: IMM-1838-04

Citation: 2004 FC 373

BETWEEN:

                                                           ALI ASHGHAR MIRZAEI

                                                                                                                                                       Applicant

                                                                              - and -

                                                         THE SOLICITOR GENERAL

                                                                        OF CANADA

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

O'KEEFE J.

[1]                 This is a motion by the Applicant, Ali Ashghar Mirzaei, for an order staying his removal from Canada, scheduled for March 9, 2003.

[2]                 The Applicant is a citizen of Iran who came to Canada on December 12, 1999, and made a claim for Convention refugee status which was refused. The Applicant submitted a PDRCC application which was deemed to be a PRRA application which was denied.

[3]                 The Applicant's wife and children are located in Iran.

[4]                 The Applicant claims a risk on his return to Iran based on his conversion to Christianity.

[5]                 The Applicant has leased a truck and is involved in the trucking business.

[6]                 The Applicant states that he send funds to support his family in Iran.

Issue: Should an order staying the removal of the Applicant be granted?

Analysis and Decision

[7]                 It is now accepted that an officer has some discretion and may, in certain circumstances, stay the removal of the Applicant (see Wang v. Minister of Citizenship and Immigration) [2001] F.C.J. No. 295 (F.C.T.D.)).

[8]                 In order to obtain a stay, the Applicant must satisfy the requirements set out in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.) at page 305:

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.

The Applicant must meet all 3 branches of the tri-partite test.

[9]                 I wish to deal first with the issue of irreparable harm to the Applicant should he be returned to Iran. Basically, the Applicant submits that he will suffer irreparable harm if he is returned to Iran as he will be at risk because of his conversion to Christianity and he will lose his trucking business. As well, if his application for leave and for judicial review is successful and if he has been removed from Canada, his H & C application will be prejudiced as his removal from Canada would have rendered his establishment in Canada irrelevant in any new H & C assessment. These, he states, would amount to irreparable harm.

[10]            Both the Refugee Board and the PRRA officer found that the Applicant would not be at risk if returned to Iran.

[11]            The Refugee Board did not believe the Applicant's claims that he was a Christian, that he was involved in the 1999 student demonstration nor that he would be at risk of persecution for selling and smuggling heretical publications into Iran.

[12]            I have reviewed the analysis carried out by the PRRA officer of the risk to the Applicant, the documentary evidence and the other evidence offered by the Applicant, and I find no basis to find that the officer made any error that was material to the decision on risk to the Applicant.

[13]            I also do not accept that, on the facts of this case, the loss of the Applicant's trucking business nor the effect on any future H & C determination constitute irreparable harm to the Applicant.

[14]            I need not deal with the question of serious issue or the balance of convenience as the Applicant must satisfy all three parts of the tri-partite test in order to obtain a stay of his removal.

[15]            The Applicant's motion for a stay of his removal is denied.

(Sgd.) "John A. O'Keefe"

   Judge

Vancouver, BC

March 11, 2004

                                       FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   IMM-1838-04

STYLE OF CAUSE: Ali Ashghar Mirzaei v. SGC

PLACE OF HEARING:                                   Vancouver, B.C.

DATE OF HEARING:                                     March 8, 2004

REASONS FOR ORDER:                                           O'KEEFE J.

DATED:                                                              March 11, 2004

APPEARANCES:

Mr. Robert Kincaid                                              FOR APPLICANT

Mr. Keith Reimer                                                 FOR RESPONDENT

SOLICITORS OF RECORD:

Robert Kincaid Law Corp.                                               FOR APPLICANT

Vancouver, B.C.

Morris Rosenberg                                                 FOR RESPONDENT

Deputy Attorney General of Canada