Date: 20000531
Docket: IMM-2594-00
IMM-2593-00
BETWEEN:
MOHAMMAD BANDZAR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.
[1] The applicant in this case was informed on Friday May 19, 2000 that he was to be deported to Iran on Wednesday May 24, 2000. By his counsel, he filed two separate applications for leave and judicial review with the Court on May 23, 2000 and in this proceeding he seeks a stay of the deportation order, pending determination of the applications for judicial review.
[2] Counsel for the applicant and for the respondent Minister were heard by telephone conference on May 23 and again on May 24. At the conclusion of the latter hearing, I orally dismissed the application for the stay and gave oral reasons, indicating that those reasons would be confirmed in writing. These are those reasons.
Facts
[3] The applicant came to Canada from Iran in November 1993 and sought refugee status. He based this application on a claim that he feared persecution in Iran because of his political beliefs. He claimed he had been active distributing leaflets for an organization opposed to the government. Further, he said he had obtained false papers so that he could leave the army before his period of conscription was up. He also obtained false papers to leave Iran and finally to come to Canada. The refugee claim was denied by the Refugee Division on July 20, 1994. The applicant made an application for leave and judicial review, which was dismissed on October 12, 1994.
[4] The applicant then requested consideration as a member of the PDRCC class, an application which was rejected on February 12, 1999. In June 1999, the applicant applied for consideration under s. 114(2) to seek landing from within Canada for humanitarian and compassionate reasons and he requested a further risk assessment. This application is still outstanding, and he has not yet received an answer, though he is now ordered to report for removal.
[5] Since his arrival, the applicant has become somewhat established in Canada. He was on welfare for some time, but more recently he has been working for his brother at a Mr. Sub food service franchise. His brother indicates, in a letter attached to the applicant's affidavit, that he is buying another Mr. Sub store and intends that the applicant manage it. The applicant has also become engaged to be married to a Canadian citizen, who is from Iran.
[6] It is well established by the jurisprudence of this Court that a stay of such an order will only be made if the applicant can establish that he has a serious issue before the court, that he will suffer irreparable harm if the stay is not granted and the serious issue is later resolved in his favour, and if the balance of convenience is in his favour. Counsel made submissions on each of these three critical areas.
Arguable Issue
[7] The question of whether the applicant has a serious issue, or an arguable case, before the Court, depends upon the issues raised in his applications for leave and judicial review filed on May 23. The first application is for mandamus, to compel the Minister to make a decision on his humanitarian and compassionate application. It is said by the applicant that the decision has been unduly delayed and this delay in itself presents an arguable issue. Further, it is argued for the applicant that the failure of the Minister to conduct a pre-deportation risk assessment raises an arguable issue. I disagree. On the first branch of his argument, the applicant has not led any evidence from which the Court can conclude the H & C application has been unduly delayed or that there is any bad faith on the part of the Minister. The jurisprudence of this Court supports the view that a bare outstanding H & C application, in itself, is not sufficient to support a stay of a deportation order.1 For the second argument put forward by the applicant, there is also insufficient evidence in the record before me to support a conclusion that a pre-deportation risk assessment is essential. There were earlier risk assessments in relation to his application for refugee status, and his later application for recognition as a member of the PDRCC class. The applicant has not presented any evidence, either to the immigration authorities in relation to his July 1999 request for risk assessment or subsequently, to the Court, that would suggest that circumstances have changed in the intervening period. In my view, there is insufficient evidence before the Court to lead to the conclusion that his applications for leave and judicial review present arguable issues.
Irreparable Harm
[8] Even were I to concede that the applicant has an arguable issue before the Court, I am not persuaded that the applicant will face irreparable harm if the stay is denied and his application for H & C consideration is determined in his favour. The applicant says he will face irreparable harm upon deportation to Iran as he faces a risk that he will not be permitted to leave Iran in the event that his H & C application is successful. For support, the applicant says in his affidavit that
| Any Iranian who returns to Iran after having made a refugee claim or who has had immigration difficulties abroad is at risk of never being allowed permission to exit the country. |
In addition, the applicant points to a portion of a human rights report prepared by the United States Department of State, which says:
| The [Iranian] Government requires exit permits (a validation stamp placed in the traveller's passport) for draft-age males and citizens who are politically suspect. |
[9] The applicant is no longer of draft age and he has served in the military. There is no evidence other than that raised in his refugee claim or his PDRCC claim about a basis for finding he would be politically suspect. Such evidence as there is has been found not to be persuasive in establishing any serious risk of persecution or risk to his person. While there may be a risk that he would not be allowed to leave Iran and return to Canada, such evidence as is before the Court is at best speculative. There is no evidence, except the applicant's affidavit, about similarly situated individuals. On this basis, it is not possible to conclude that the applicant would face irreparable harm in the time between a denial of the stay application and any positive decision on his application for leave and for judicial review, or in the time following any positive determination of that application.
[10] I am assured by counsel for the respondent, who consulted with her client, that the applicant's H & C application will continue to be processed and, if successful, and if he is not otherwise inadmissible, he will be able to return to Canada while his inland application is processed. Denying the application for a stay does not foreclose the evaluation of his H & C application, nor would it render it moot.
Balance of Convenience
[11] In this case, it is my opinion that the balance of convenience favours the Minister in her discretion to arrange execution of the removal order as she sees fit.
[12] That said, I record that I have some concerns regarding the manner in which removal of the applicant was ordered. He was informed on the 19th of May, a Friday before a long weekend, that he was to report to Pearson Airport on the following Wednesday for removal. This is a case where the applicant had shown his intention of complying with immigration requirements. There is nothing to suggest that haste was necessary; particularly in light of the failure of the respondent's officers to determine the applicant's H & C application over almost 12 months.
Conclusion
[13] I was not satisfied that the applicant demonstrated that he would suffer irreparable harm if the stay were not granted but he is later successful in his application for leave and judicial review. The balance of convenience thus favours the Minister, who has public responsibilities under the Act to arrange for removal of persons not entitled by law or by discretion of the Minister to remain in Canada. For these reasons, Orders issued following the hearing on May 24 dismissing the application for a stay of the deportation order, and directing the Minister to determine the applicant's H & C application, confirming the Orders orally rendered at the conclusion of the hearing.
(signed) W. Andrew MacKay
JUDGE
OTTAWA, Ontario
May 31, 2000
__________________1 See: Appiagyei v. Canada (Minister of Citizenship and Immigration) , [1995] F.C.J. No. 1211 (T.D.); Appiah v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 163; Balasumbramaniam v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1118 (T.D.); Cuff v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1865 (T.D.).