Demircivi v. Canada (Minister of Citizenship and Immigration), 2003 FC 1300

Date: 20031106

Docket: IMM-7606-03

Citation: 2003 FC 1300

BETWEEN:

                                                                ILHAN DEMIRCIVI

                                                               and SENAY AYDENIZ

                                                                                                                                                      Applicants

                                                                              - and -

                                                  THE MINISTER OF CITIZENSHIP

                                                              AND IMMIGRATION

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

MacKAY J.

[1]                 The Applicants sought a stay of their prospective removal from Canada pending consideration by this Court of their Application for Leave and for Judicial Review of a negative decision concerning their application for landing from within Canada on humanitarian and compassionate grounds. When the matter came on for hearing in Vancouver on November 3, 2003, their removal had not yet been scheduled.

[2]                 The Applicants are respectively a husband and wife who came to Canada in 2000 and here sought refugee status. The husband was a native of Turkey who married his wife in that country to which she had moved in 1990. She was an ethnic Turk born in Bulgaria. The husband comes from a deeply religious Muslim family who did not approve of the marriage of the Applicants and had threatened even to kill them. Concerned that they could not find protection in Turkey they came to Canada.

[3]                 Their claim for refugee status was denied on October 18, 2001. Thereafter, they applied for permanent residence from within Canada on H & C grounds. Their pre-removal risk assessment application was denied and, on September 17, 2003, they also were advised that their H & C application had also failed. Further, they were told that they could expect to be called in for removal when that would be aranged.

[4]                 Earlier in this year, the Applicants had bought a pizza business in downtown Vancouver, financed in substantial part on funds borrowed from Canadian sources. For this business, they had originally signed a lease for three years, a period which still had 2½ years to run when they were advised of the negative decision on their H & C application. After that decision they had sought unsuccessfully to take steps to sell the business, and they had advice that it might take up to six months for the business to be sold.

[5]                 In connection with their Application for Leave and for Judicial Review of the negative decision on their H & C application, they claim to fear violence at the hands of the male Applicant's parents, essentially on religious grounds, and a lack of protection available from Turkish authorities. In regard to their application for a stay of removal, counsel urged that serious issues were raised by the underlying Application for Judicial Review.

[6]                 I need not resolve that issue since I was not persuaded that the Applicants had established they would suffer irreparable harm between the date of the hearing and any date when their Application for Leave would be considered, and if leave were granted, when the Application for Judicial Review would be determined. The irreparable harm they set out by affidavit of the wife, supported by her husband, is that "from a financial point of view, going to Turkey prior to selling our business, will inevitably make us suffer irreparable harm". In view of average annual incomes for people in Turkey, it would be, it is urged, impossible for them to pay off debts arising in Canada from sudden liquidation of their business, without reasonable time for it to be wound up. Moreover, it is urged that if they were now removed, loss would be caused to their creditors in Canada, to whom they owe almost $45,000.00. In my opinion, neither of these concerns of difficult financial circumstances constitutes irreparable harm that would occur in the limited time between now and the determination of any application for judicial review.

[7]                 Financial losses are not generally considered to constitute irreparable harm. If the Applicants' Application for Judicial Review is ultimately successful within the limited time it will take for that decision, it is not likely that the Applicants' financial loss will be as significant as is now speculated to be possible. Ultimately, their business would be sold if that should prove necessary and its sale would result in some assets for distribution to Canadian creditors. In any event, any loss to Canadian creditors is not a basis for finding irreparable harm to the creditors or to the Applicants.

[8]                 In the circumstances, I declined to grant a stay of removal of the Applicants. I did ask counsel for the Respondent to invite the Minister's delegate to seek to arrange removal of the Applicants at a reasonable time that would minimize financial hardship that could arise from sudden abandonment of their business.

[9]                 Following the hearing on November 3, an Order issued denying the application for a stay.

(Sgd.) "W. Andrew MacKay"

Judge

Vancouver, BC

November 6, 2003

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                      IMM-7606-03

STYLE OF CAUSE:           ILHAN DEMIRCIVI and SENAY AYDENIZ    

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

PLACE OF HEARING:         Vancouver, B.C.

DATE OF HEARING:           November 3, 2003

REASONS FOR ORDER:          MacKAY J.

DATED:                       November 6, 2003

APPEARANCES:

Ms. Negar Azmudeh                           for APPLICANTS

Mr. Peter Bell                                for RESPONDENT

SOLICITORS OF RECORD:

Embarkation Law Group                        for APPLICANTS

Citizenship and Immigration Lawyers

Vancouver, B.C.

Morris Rosenberg                                   for RESPONDENT

Deputy Attorney General of Canada