Date: 20040614
Docket: IMM 5077-04
IMM 5079-04
Citation: 2004 FC 874
Vancouver, British Columbia, Monday, the 14th day of June 2004
Present: THE HONOURABLE MR. JUSTICE VON FINCKENSTEIN
BETWEEN:
AMIR HOMAN KAZEMIAN
Applicant
- and -
SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] These are two judicial reviews from the negative decisions of officer A. Bremer regarding:
a) an application for permanent residence from within Canada on humanitarian and compassionate grounds (H & C application); and
b) a Pre Removal Risk Assessment decision (PRRA application)
both of which were given to the Applicant on June 2, 2004.
[2] By agreement of the parties both stay applications were heard together. Equally on the request of both parties I ordered that, in light of the recent government reorganization, the style of cause should be changed so that the Respondent becomes the Solicitor General of Canada in lieu of the Minister of Citizenship and Immigration.
[3] To succeed in either application the Applicant has to meet the conjunctive three legs of the test in Toth v. Minister of Employment and Immigration, (1998) 86 N.R. 302.
[4] The standard for review in stay applications is succinctly set out in Singh v. Canada (M.C.I.), [2003] F.C.J. No. 1665, at para., where 10, Lemieux J. summarized the case law as follows:
... on a stay application, this Court is not called upon to determine whether the applicant would succeed in his judicial review application if leave was authorized but rather whether the underlying application discloses a case which is neither frivolous nor vexatious and whether the applicant would suffer irreparable harm on a balance of probabilities (see, RJR MacDonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. 311."
Accordingly, with regards to the first step of the Toth test, the question is whether the issue to be tried is serious rather than frivolous or vexatious.
With regards to the second step of the Toth test, the relevant question is whether the applicant has demonstrated on a balance of probabilities that he would suffer irreparable harm if the stay was not granted.
[5] The Applicant is an Iranian citizen who came to Canada in 1997. His application for refugee status was denied and his application for judicial review of the IRB decision was also unsuccessful.
[6] He then brought his H & C application and his PRAA application. Upon both being denied he has applied for leave for judicial review from both. He is now seeking a stay until the outcome of these judicial review applications.
[7] His contentions in respect of the irreparable harm part of the Toth test are that:
a) he will be persecuted as an apostate (given that he has converted to Christianity) by Iranian authorities;
b) his father is well known to Iranian authorities and he will be persecuted by his reason of being the son of a prominent critic of the regime; and
c) there is a strong emotional bond between his mother and him and separation will put both his and her fragile health in danger.
[8] I do not find that the Applicant has made out a case that on the balance of probabilities he will be persecuted in Iran.
[9] As a convert from Islam to Christianity he is indeed considered an apostate. However, the lengthy evidence reviewed by the PRRA officer shows while there is a law against apostates, it is only enforced against persons actively seeking to convert Moslems. The Applicant in his PIF said: "While in Iran I attended a Christian church regularly. I was very private about my religious views and did not talk to any one about them." (Respondent Record, p. 19)
[10] The Department of State Iran country report for 2002 quotes the President of Iran to the effect that no one in the country should be persecuted because of their religious beliefs. (Respondent Record, p. 105)
[11] Similarly, UK 2004 Country Report for Iran states:
In practice Muslim converts to Christianity may face obstacles such as not being admitted to university or being issued a passport. Even Moslem converts, however, in reality appear to be able to practice their new faith up to a point. This means that weekly church attendance is a possibility. On the other hand those who actively display their new faith in public, in particular proselytising, can expect to face severe repression even if their conversion goes back decades.
[Appellant's Record, p. 310]
[12] In light of the Applicant's own description of his approach to religion, his past experience in Iran and the absence of any evidence that he intents to proselytise, I don't see how it can be said that it is probable that he will be persecuted on the basis of his religion.
[13] As to persecution on the basis of being his father's son, it should be noted that the father left Iran and now lives in the UK. The Applicant's troubles in Iran by reason of his father's activities took place in the 1980's with the last incident being an incident in 1989. He lived in Iran for another eight years and left in 1997 with a valid passport and Visa. One has to ask why the authorities would now pursue him when they left him in peace for the years 1989 to 1997 while he lived in Iran. This issue was twice canvassed: first by the IRB, then by the PRRA officer and both found no reason suggesting likely persecution. There is nothing in the facts adduced before me that would lead me to question either finding.
[14] Lastly, in respect of the impact of his departure on his mother and the emotional bond between them, the Applicant has not produced any evidence of how he and his mother support each other. They live separately and he does not support her financially. The only evidence is that they are both in poor health. To put the Applicant's situation in context one needs to recall Pelletier J.'s finding in Melo v. Canada (M.C.I.), [2000] F.C.J. No. 403, at para. 20, were he stated:
As I have noted elsewhere there is authority in the Federal Court of Appeal to the effect that damage to the economic and other interests of the applicant can satisfy the requirement of irreparable harm. In this case, the applicant will lose a position which is apparently much better than any he has previously been able to obtain and which allows him to support his current family as well as contributing in an admittedly unstated amount to the support of his daughters. There is also the issue of the effect of deportation upon his ongoing treatment. His psychiatrist's evidence is that the loss of the support structures which are in place for Mr. Melo in Canada may well result in a loss of the therapeutic gains which he has achieved over such a long period of time. Finally, there is the impact of Mr. Melo's departure upon his daughters. The evidence is that they will be devastated. They may eventually have to deal with unhappy event since there is no guarantee that a reconsideration of the appeal will lead to a different result. The affidavit evidence of Rhonda Sullivan is that she and Eduardo will accompany Mr. Melo if he is deported so that there is no particular issue as to the effect of deportation upon them.
These are all unpleasant and distasteful consequences of deportation. But if the phrase irreparable harm is to retain any meaning at all, it must refer to some prejudice beyond that which is inherent in the notion of deportation itself. To be deported is to lose your job, to be separated from familiar faces and places. It is accompanied by enforced separation and heartbreak. There is nothing in Mr. Melo's circumstances which takes it out of the usual consequences of deportation.
[15] The mere assertion of emotional support for each other does not establish irreparable harm or establish 'some prejudice that is not inherent in the motion of deportation itself'.
[16] Accordingly, these two motions for stay will be dismissed. As the Applicant failed to establish "irreparable harm" under the conjunctive Toth test, I need not consider the issues of "serious issue" and "balance of convenience".
ORDER
THIS COURT ORDERS that the motions for a stay of deportation in files
IMM-5077-04 and IMM-5079-04 are hereby denied.
(Sgd.) "K. von Finckenstein"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5077-04 & IMM-5079-04
STYLE OF CAUSE: AMIR HOMAN KAZEMIAN
- and -
SOLICITOR GENERAL OF CANADA
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: June 14, 2004
REASONS FOR ORDER AND ORDER: VON FINCKENSTEIN J.
DATED: June 14, 2004
APPEARANCES:
Mr. Bediako Buahene FOR APPLICANT
Mr. R. Keith Reimer FOR RESPONDENT
SOLICITORS OF RECORD:
Bediako Buahene FOR APPLICANT
Barrister and Solicitor
Vancouver, BC
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Ottawa, ON