Date: 20090715
Docket: IMM-2602-09
Citation: 2009
FC 722
Vancouver, British
Columbia,
July 15, 2009
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
BORHAN GHAHREMANI and
FATEME SOLTANI OVANDI
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION and
THE MINISTER OF PUBLIC SAFTY
AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR ORDER AND ORDER
[1]
The
Applicants, husband and wife, are scheduled to be removed to Iran, their homeland, later this month. They
ask this Court to stay that removal.
[2]
Their
claim that they were refugees or otherwise in need of Canada’s protection was dismissed in 2006. More
recently, their pre-removal risk assessment (PRRA) was also unsuccessful. They
have applied to this Court for leave and for judicial review of that decision.
Given the delays provided for in the Rules, it will be a month before leave is
granted or denied.
[3]
There is a
fundamental date in this case which simply cannot be ignored, June 12, 2009. On that
day, a general election was held in Iran.
It is a notorious fact, which the Minister does not dispute, that many Iranians
deny that the incumbent president, Mahmoud Ahmadinejad, actually won that
election. There have been street protests throughout the country; harsh violence
has been used to suppress them. Many protesters have been killed, beaten or
arrested. Because of severe restrictions on the freedom of the press, it is
difficult to know exactly what is going on. The Canadian government has rebuked
Iran and rescinded its Canada Day
invitation. Iranian nationals working at the British embassy in Tehran have been arrested. Some have
been released; the fate of others is unknown. Britain has been accused of subversive
activities.
[4]
Yet, the
Canadian government has not placed a moratorium on returning failed refugees to
Iran until such time as the
current situation can be clarified. Hence, a motion to this Court for a stay of
removal pending resolution of the underlying application for leave and for
judicial review.
[5]
A stay is a
discretionary remedy. It is incumbent upon the Applicants to convince the Court
that there is a serious issue in the underlying application, that irreparable
harm would be suffered, and that the balance of convenience favours them (Toth
v. Canada (Min. of Employment & Immigration) (1988), 86 N.R. 302 (Fed. C.A.), 6 Imm. L.R. (2d) 123; RJR-MacDonald
Inc. v. Canada (A.G.), [1994] 1 S.C.R. 311. The
test is conjunctive.
[6]
As per RJR-MacDonald,
the serious issue question in the context of this particular case is whether
the motion for a stay is frivolous or vexatious. This test is less stringent
than the test as to whether or not there is an arguable case that leave should
be granted, and far less stringent that a determination on the merits which is
based on the balance of probabilities.
[7]
In the
eyes of the Canadian authorities Mr. Ghahremani is a liar. The basis of the
couple’s refugee claim sur place was that he worked as an electrician at
a secret nuclear facility, came here on a visitor’s visa when his father died
here, and then, through a series of mishaps, that information became public and
would lead to his persecution should he be returned to Iran.
[8]
The panel
of the Refugee Protection Division (RPD) of the Immigration and Refugee Board
concluded that the whole story was fabricated from information which was
publicly available. It is a fact, however, that he was twice interviewed by
CSIS. No consideration was given by the RPD as to whether this fact would put
Mr. Ghahremani in jeopardy on return to Iran and so it was considered as a
fresh issue in the PRRA, as was his more recently developed opposition to the
current regime.
[9]
Although
the PRRA officer recognized that returning Iranians may be questioned, even harshly
so, he saw no need for Mr. Ghahremani to mention his involvement with CSIS or to
mention his current opposition to the government in power. In other words, if
asked, Mr. Ghahremani is being encouraged by the PRRA officer to lie. He
doubted the Applicant would be treated harshly.
Serious Issue
[10]
It is
certainly not frivolous or vexatious to submit that the PRRA officer’s findings
of fact were highly speculative. In Boyer v. The King (1948), 94 C.C.C.
195, the accused was convicted of violating our Official Secrets Act
notwithstanding that the information revealed was said to be in the public
domain. The issue is not whether Canadian officials consider Mr. Ghahremani a
liar, but rather how he will be considered in Iran.
Irreparable Harm
[11]
Even
without the current unrest in Iran, if, as is arguable, the underlying
decision was made on an erroneous finding of fact, there is no doubt that
the Applicants face the serious possibility of irreparable harm, persecution,
unusual punishment, torture and perhaps death.
[12]
Furthermore,
if the Applicants are removed now, their application for judicial review
becomes moot in the light of the recent decision of the Federal Court of Appeal
in Perez v. Canada (Minister of Citizenship and Immigration), 2009 FCA
171, 2009 F.C.J. No. 691. It is too speculative to imagine that, nevertheless,
the Court in its discretion would decide to hear the application for judicial
review on its merits.
Balance of Convenience
[13]
The
balance of convenience strongly favours the Applicants. Not only is there great
uncertainty as to the current situation in Iran, but the application for leave will in
all likelihood be decided in a month’s time. In addition, counsel advised that
efforts in one way or another will be made to get the current situation before
a decision-maker, be it by a new PRRA or an expedited application on humanitarian
and compassionate grounds.
ORDER
UPON MOTION to stay the removal of the
Applicants to Iran, currently scheduled for July 31, 2009, pending
determination of the application for leave and for judicial review of the negative
decision of the pre-removal risk assessment officer, dated February 26, 2009;
THIS COURT ORDERS that the motion is granted. The
removal of the Applicants is so stayed.
“Sean
Harrington”
Email this Content