Date: 20010412
Docket: IMM-1376-01
Neutral citation: 2001 FCT 324
BETWEEN:
MOHAMMAD SAEID SHAFIGH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLANCHARD J.
[1] The Applicant has brought an application to stay a removal order which requires his removal to Iran on April 18, 2001.
[2] On March 19, 2001, the Applicant filed in this Court an application for leave and for judicial review of his first negative H & C decision dated December 14, 2000.
[3] The Applicant, his wife and son, are citizens of Iran. Their convention refugee claim and Post-Determination Refugee Claimants in Canada ("PDRCC") applications were refused. Their H & C application under s.114(2) of the Immigration Act application was refused. They are to be removed from Canada on April 18, 2001.
[4] The Applicant was informed that his initial H & C application was refused on December 14, 2000. The Applicant alleges he was advised by a person at the Immigration Call Centre that he could either appeal the decision or make a new H & C application. At that time, he elected to make a new H & C application. The applicant alleges he was not aware he could pursue both avenues until his new counsel advised him so in early March 2001. He, therefore, applied for leave and for Judicial Review of this negative H & C decision on March 19th, 2001, almost 3 months later. This is the underlying Judicial Review application upon which this Stay application is based.
[5] In order to succeed on his motion to stay the execution of the deportation order, the Applicant must establish there is a serious issue to be tried, that he would suffer irreparable harm by reason of his deportation and that the balance of inconvenience lies in his favour.
[6] I have not been persuaded that the application raises a serious issue to be tried. However, even if I were to conclude that the application raises a serious issue to be tried, I am of the opinion that the Applicant has adduced no credible evidence to establish that he or members of his family would suffer irreparable harm.
[7] The Applicant asserts that the lack of medical treatment in Iran for the daughter's treatment and the potential that he, his wife and son might face punishment for leaving Iran without permission constitutes irreparable harm.
[8] There is no specific evidence on the level of medical treatment required for the daughter, and there is no conclusive evidence that treatment for the daughter's condition will not be available in Iran. There is evidence of health care for the daughter in Iran. The Applicant's assertion are speculative on this issue. Similarly, there is no evidence that the Applicant would face extreme punishment if he returned to Iran. A risk officer did consider the relevant documentary evidence and determined that the Applicant would not be at risk in Iran for making a refugee claim in Canada or for any other basis that he claimed. Evidence of irreparable harm must not be speculative.
[9] There is no evidence that the harm feared by the Applicant will occur so as to meet the high threshold of irreparable harm.
[10] Therefore, the Applicant failed to adduce any credible evidence that he would suffer irreparable harm by reason of his removal to Iran.
[11] In the circumstances, it is not necessary for me to consider the question of the balance of inconvenience.
[12] For the above reasons, the motion for Stay of the removal order is dismissed.
"Edmond P. Blanchard"
J.F.C.C.
Toronto, Ontario
April 12, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1376-01
STYLE OF CAUSE: MOHAMMAD SAEID SHAFIGH
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
DATE OF HEARING: MONDAY, APRIL 9, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: BLANCHARD J.
DATED: THURSDAY, APRIL 12, 2001
APPEARANCES BY: Mr. Max Chaudhary
For the Applicant
Mr. Martin Anderson
For the Respondent
SOLICITORS OF RECORD: Chaudhary Law Office
Barristers & Solicitors
405-255 Duncan Mill Road
North York, Ontario
M3B 3H9
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010412
Docket: IMM-1376-01
BETWEEN:
MOHAMMAD SAEID SHAFIGH
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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