Alam v. Canada (Minister of Citizenship and Immigration), docket IMM-6129-00

    

     Date: 20010119

     Docket No.: IMM-6129-00

OTTAWA, ONTARIO, THIS 19^th DAY OF JANUARY, 2001

PRESENT:      THE HONOURABLE MR. JUSTICE BLANCHARD

BETWEEN:

     SAIMA ALAM

     MOHAMMED ZAHID

     NAHIYAN SAIYARA KHAN

     Applicants

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER AND ORDER

[1]      The applicants, Saima Alam, Mohammed and Zahidnahiyan Saiyara Khan, have brought a motion for a stay of a removal order. The grounds of the motion are that the applicants have raised a serious issue to be tried with respect to a PDRCC decision for which leave and for judicial review are sought, that they would suffer irreparable harm if deported to Bangladesh, and that the balance of inconvenience favours them.

[2]      The applicants are a Bangladeshi couple and their three year old daughter. The principal applicant, Saima Alam, is a 28 year old woman. Their claim for Convention refugee status was rejected by the CRDD and leave for the judicial review of the decision was not granted. Her claim was based on a fear of persecution by an Islamic fundamentalist group because of Ms. Alam's involvement in a women's right organisation, Ekota.

[3]      Their PDRCC application was rejected on October 27, 2000 by a Post Claim Determination Officer (PCDO). That decision is the subject of the application for leave and for judicial review. They are requesting a stay until their application has been determined.

[4]      In immigration matters, this Court has clearly established that the test for considering whether to grant a stay of proceedings is similar to that for an interlocutory injunction.¹ The test requires, for the granting of such an order, that the applicant demonstrate:

(1)      that he has raised a serious issue to be tried in the underlying judicial review application;

(2)      that he would suffer irreparable harm if no order was granted; and

(3)      that the balance of convenience considering the total situation of both parties, favours the grant of the stay.

Standard of Review

[5]      This Court has held on numerous occasions that discretionary decisions of post-claim determination officers (PCDO) are subject to judicial review only if the officers exercised their discretion pursuant to improper purposes, irrelevant considerations, with bad faith, or in a patently unreasonable manner. As stated by Noël J. (as he then was):

... this Court will not intervene in discretionary decisions of post-claim determination officers unless such discretion can be shown to have been exercised pursuant to improper purposes, irrelevant considerations, with bad faith, or in a patently unreasonable manner.2

[6]      I believe that this sets the appropriate standard for review of the PCDO's decision.

Serious Issue to be Tried

[7]      In order to consider granting a stay and satisfy the first part of the tripartite test, I must find that there is a serious issue to be tried in the underlying judicial review application. The serious issue in this case is whether the PCDO considered the evidence properly in assessing the claim and did not focus on improper purposes or irrelevant considerations.

[8]      Given that the threshold to be met is rather a low one³, I am satisfied that the applicant has shown that there are issues that remain to be determined regarding her status as an immigrant or refugee under the Immigration Act, R.S.C. 1998, c. I-2. An analysis of the decision of the PCDO reveals that it could be argued that she did not appear to give appropriate weight to material elements of evidence, notably, the letter dated July 26, 1999, from Ain O Salish Kendra, a well known human rights organization. In her decision, the PCDO states:

Dans les observations accompagnées d'une volumineuse documentation sur la situation des femmes au Bangladesh, se trouvent des documents que madame avait déclaré ne pas pouvoir obtenir lors de l'audience à la CISR, tel que ci-haut mentionné, des photocopies de pamphlet sans date et leur traductio, lettres de support de collègues, divers documents personnels, comme diplômes et certificat de naissance et contrat de mariage.4

[9]      Moreover, the PCDO concentrates her decision on what could be argued to be minor inconsistencies and irrelevant matters. Further, it could equally be argued that her finding that the applicant will not suffer persecution if deported is based on questionable conclusions of facts. I need not make conclusive findings on these issues, however, I am satisfied that the applicant has met the "low" threshold, and has raised a serious issue.

[10]      I therefore find that the applicant raised a serious issue to be tried in the underlying judicial review application.

Irreparable harm

[11]      In the circumstances, I find that the applicant would suffer irreparable harm if the stay is not granted. The applicant's claim for irreparable harm is set out in her affidavit in support of the application for a stay. The affidavit establishes the following facts:

-      In 1996 an Islamic mullah opened a religious centre in her neighbourhood;

-      A group of women created Ekota, a women's right organisation, in December 1996. The applicant was chosen as Secretary General of Ekota;

-      In September 1998, her husband was assaulted by the Islamic fundamentalists;

-      On October 1, 1998, the mullah declared the Ekota leaders "enemies of Islam";

-      On October 4, 1998, the applicant received death threats on the telephone;

-      On October 6, 1998, a brick was thrown through her car window and she received more death threats on the telephone;

-      On October 10, 1998, her home and the adjoining Ekota office were ransacked byfundamentalists.

[12]      Moreover, a letter dated January 9, 2001 from Shahanaz Parvin, research assistant at Ain O Salish Kendra, which is a well established Human Rights Organisation in Bangladesh, states that:

I [Shahanaz Parvin] am closely aware that the fundamentalists are still very active to execute the death sentence pronounced by fundamentalists. In such a situation, it is very risky and life threathening for Mrs. Saima to return to the country along with the family (memebrs) [sic].

[13]      Having analysed the events described in the applicant's affidavit and having reviewed the letter of Shahanaz Parvin, research assistant at Ain O Salish Kendra, I find that the applicants will suffer irreparable harm if removed from Canada at this time.

Balance of convenience

[14]      I find that the balance of convenience must favour the applicants. The stay is granted and will follow the disposition of the application for leave and judicial review.

     ORDER

     IT IS ORDERED THAT:

1.      the stay is granted until disposition of the application for leave and for judicial review and if granted until the disposition of the Judicial Review.

            

                            

     "Edmond P. Blanchard"

     Judge

__________________

¹      Toth. v. Canada (Minister of Employment and Immigration) (1988), 6 Imm. L.R. (2d) 123.

²      Gharib v. Canada (Minister of Citizenship and Immigration) (1995), 30 Imm. L.R. (2d) 291 at 297 (F.C.T.D.)

³      Copello v. Canada (Minister of Foreign Affairs) (1998), 152 F.T.R. 110 at 111 (T.D.).

⁴      Applicant's Record, PCDO's decision, p. 10.