Cha v. Canada (Minister of Citizenship and Immigration), 2002 FCT 361

                                                                                                                                          Date:    20020403

                                                                                                                             Docket:    IMM-1239-02

                                                                                                              Neutral citation:    2002 FCT 361

Ottawa, Ontario, this 3^rd day of April, 2002

PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD

BETWEEN:

SOO CHANG CHA

HYO KYUNG BOK

JIN A CHA (by her litigation guardian)

                                                                                                                                                      Applicants

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 This is an interlocutory motion for stay of execution of the removal order directed by an Enforcement Officer of the Greater Toronto Enforcement Centre CIC, for the removal of the applicants on April 5, 2002.

[2]                 The applicants were found not to be Convention Refugees by a negative decision of the CRDD dated March,1, 2001. Leave for judicial review was denied by this Court on September 28, 2001.

[3]                 A risk assessment was conducted by a Post-Claim Determination Officer and completed on February 6, 2002. The Officer concluded that the Applicants would not face an identifiable risk to their lives, of extreme sanctions or inhumane treatment for any reason if returned to the Republic of Korea.

[4]                 The applicants were informed of this negative risk assessment on March 12, 2002, the same day they were notified of the direction for removal.

[5]                 The applicants filed an H & C application on June 4, 2001. The said application was denied on March 5, 2002 and the applicants were notified of this decision of March 13, 2002.

[6]                 The applicants filed an application for leave and for judicial review of the negative PDRCC decision on March 15, 2002 and for the negative H & C decision on March 19, 2002. These applications for leave and for judicial review constitute the underlying applications to the within motion.

[7]                 Even if I were persuaded that there is a serious issue to be tried in the underlying applications with respect to the applicants' submissions on procedural fairness and denial of the due process of the law, and I make no such finding, I am not satisfied, for the purposes of this interlocutory proceeding that the applicants have established, on the evidence before me, that they would suffer irreparable harm should they be removed to the Republic of Korea.

[8]                 The evidence before me on this motion has already been considered by a PDRCC Officer. A review of the PDRCC Officer's risk assessment reveals that no new evidence is before me on this motion that has not already been considered by the PDRCC Officer.

[9]                 In Immigration matters, this Court has established in Toth v, Canada ( Minister of Employment and Immigration) (1968), 6 Imm L.R. (2d) 123, that the test for considering whether to grant a stay is similar to that for an interlocutory injunction. The applicants have failed to satisfy the second prong of the tripartite test in Toth, supra, notably, irreparable harm. Given that the test is conjunctive, I am of the view that this application for a stay must fail.

[10]            In the circumstances of this case, I find that the balance of convenience favours the respondent. This motion will therefore be dismissed.

                                                                            ORDER

THIS COURT HEREBY ORDERS that:

1.         The motion for a stay is dismissed.

                                                                                                                                "Edmond P. Blanchard"                 

                                                                                                                                                            Judge