Merkoulov v. Canada (Minister of Citizenship and Immigration), 2002 FCT 378

Date: 20020405

Docket: IMM-1197-02

Neutral citation: 2002 FCT 378

Ottawa, Ontario, this 5th day of April, 2002

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                                           SERAFIM MERKOULOV

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 This is a motion by the applicant for an order to stay his removal from Canada to Russia until such time as his pending application for permanent residence, based on humanitarian and compassionate considerations is dealt with and until his application for leave and judicial review is disposed of. The applicant's removal is scheduled for April 8, 2002.

[2]                 The applicant is a citizen of Russia who arrived in Canada on July 8, 1999. He applied for Convention refugee status and was denied on July 16, 2001. The applicant applied for leave and for judicial review of the Convention refugee decision and was denied.

[3]                 On October 23, 2001, the applicant filed an application for an exemption from the landing requirement based on humanitarian and compassionate grounds. This application is still being processed.

[4]                 The applicant had two interviews with the removal officer; one on February 15, 2002 and the other on March 14, 2002. The applicant submits that the officer did not consider the materials provided to her prior to rendering her initial decision and that the officer did not give him an opportunity at the second meeting to explain his request for an extension.

[5]                 The applicant has been living in a common law union with Ms. Gribanova and they plan on being married as soon as divorce proceedings are completed.

[6]                 The applicant states that he does not have close family ties nor economic prospects in Russia. As well, he states that he fears persecution by organized crime.

[7]                 The applicant claims to have left Russia due to his fear of persecution by criminal groups that attempted to extort money from him.

Issue

[8]                 Should an order issue staying the removal of the applicant?

Analysis and Decision

[9]                 It is now accepted that a removal officer has some discretion and may, in certain situations, stay the removal of the applicant (see Wang v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 295 (F.C.T.D.)).

[10]            In order to obtain a stay, the applicant must satisfy the requirements set out in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.) at page 305:

This Court, as well as other appellate courts have adopted the test for an interim injunction enunciated by the House of Lords in American Cyanamid Co. v. Ethicon Ltd. [1975] A.C. 396 [Footnote 3 appended to judgment]. As stated by Kerans J.A. in the Black case supra:

The tri-partite test of Cyanamid requires, for the granting of such an order, that the applicant demonstrate, firstly, that he has raised a serious issue to be tried; secondly, that he would suffer irreparable harm if no order was granted; and thirdly that the balance of convenience considering the total situation of both parties favors the order.

The applicant must meet all three branches of the tri-partite test.

[11]            I propose to deal first with the issue of irreparable harm.

[12]            Irreparable Harm

The applicant submits that should he be deported, Ms. Gribanova's (with whom he has been in a common law relationship since April, 2001) children will suffer irreparable emotional harm. He also submitted that if he is deported to Russia, it would take over 18 months to deal with a sponsorship application for him. He stated that:

. . . I will face significant personal hardship and difficulties in attempting to establish myself in Russia. Furthermore, I still fear persecution by organized crime, who are known for their vengefulness and long memory.

[13]            Neither of the two letters requesting a deferral raised the issue of risk to life and safety. There are no details as to the nature of the persecution feared by the applicant should he be returned to Russia. I am unable to come to a conclusion that the applicant would suffer irreparable harm if he was returned to Russia. Also, according to the Convention Refugee Determination Division decision, the applicant reported a July, 1998 beating to the police and criminal charges were laid against the individuals.

[14]            Because the applicant must satisfy all three branches of the tri-partite test for a stay, the applicant's motion for a stay must be denied.

[15]            As I have not found irreparable harm to the applicant, I need not deal with "serious issue" and "balance of convenience".

[16]            The motion for a stay of removal from Canada is hereby denied.

ORDER

[17]            IT IS ORDERED that the applicant's motion for a stay of his removal from Canada is hereby denied.

                                                                                   "John A. O'Keefe"             

                                                                                                      J.F.C.C.                      

Ottawa, Ontario

April 5, 2002