Date: 20040226
Docket: IMM-1301-04
Citation: 2004 FC 285
Toronto, Ontario, February 26th, 2004
Present: The Honourable Mr. Justice O'Keefe
BETWEEN:
PETER PAL RACZ
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is a motion by the applicant for an order staying his removal from Canada to Hungary scheduled for February 27th, 2004.
[2] The applicant came to Canada from Hungary in 1996 and made a convention refugee claim on the basis of his Roma heritage. The claim was denied and the judicial review of the decision was denied (leave denied).
[3] The applicant made a PDRCC application which was refused.
[4] The applicant filed an application for landing on humanitarian and compassionate grounds in January 2001. The applicant's removal was deferred pending the determination of his application for landing which was refused on July 18, 2003.
[5] The applicant submitted a Pre-Removal Risk Assessment Application (the "PRRA") which was denied. The PRRA application contained further information stating that the applicant was threatened by a person who belonged to a group that has ties with organized crime and thus the applicant fit the definition of Convention Refugee because he was a member of a particular social group - Victims of crime.
[6] The applicant requested a stay of his removal from an Enforcement officer. This request was denied on February 5, 2004.
[7] The applicant was married on November 11, 2003 and a sponsorship application was prepared. The applicant's wife has potentially serious health problems.
[8] The applicant filed for judicial review of the PRRA decision.
[9] Issue: Should the Removal Order be stayed?
Analysis and Decision
[10] An Enforcement officer has some discretion and may in certain circumstances, 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.)).
[11] In order to obtain a stay of the removal order the applicant must meet 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.
Serious Issue
[12] The applicant has raised as serious issues the following:
1. The officer erred in law in finding that there was no nexus between the applicant's stated fear and the definition of convention refugee.
2. The officer erred in law in finding that state protection was available to the applicant.
[13] A review of the officer's decision discloses that the officer appeared to rule out the applicant fitting within the definition of convention refugee because his claim to be a convention refugee was based on his membership in a particular social group - Victims of crime. While it is true that the majority of the case law would support this conclusion there have been a number of decisions of this Court that have held that in certain circumstances members of the social group - Victims of crime can be classified as convention refugees. This does not appear to have been considered by the officer. As such I believe that constitutes a serious issue to be tried. I need not deal any other serious issues.
Irreparable Harm
[14] In Nemati v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 853 Kelen J. held that the denial of an opportunity to have a potentially successful PDRCC heard constituted irreparable harm to the applicant. In the present case the applicant was entitled to have considered by the officer the issue of whether or not the applicant's particular fact situation make him or did not make him a member of a particular social group - Victims of crime that met the definition of convention refugee. The failure to do so constitutes irreparable harm to the applicant.
Balance of Convenience
[15] The applicant has been in Canada since 1996 and does not pose any threat to the public. The balance of convenience favours the applicant.
[16] The applicant's motion for stay of the removal order is granted.
[17] At the request of the respondent the style of cause is amended by deleting "The Minister of Citizenship and Immigration" as a respondent and substituting therefore the "Solicitor General of Canada."
ORDER
THIS COURT ORDERS that
1. The removal order issued against the applicant is stayed until leave is denied in the application for leave for judicial review and if leave is granted then the removal order is stayed until the application for judicial review is dealt with by the courts.
2. The style of cause is amended by deleting "The Minister of Citizenship and Immigration" as a respondent and substitute therefore the "Solicitor General of Canada".
"John A. O'Keefe"
J.F.C.
I HEREBY CERTIFY that the above document is a true copy of the original filed of record in the Registry of the Federal Court the __________ day of _____________ A.D. 2004
Dated this _______ day of _______________, 2004
_______________________________
Name, Title of Officer
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1301-04
STYLE OF CAUSE: PETER PAL RACZ
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 23, 2004
REASONS FOR ORDER
AND ORDER BY: O'KEEFE J.
DATED: FEBRUARY 26, 2004
APPEARANCES:
|
|
FOR THE APPLICANT
|
|
|
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
|
Barrister & Solicitor Toronto, Ontario |
FOR THE APPLICANT |
|
Deputy Attorney General of Canada Toronto, Ontario |
FOR THE RESPONDENT |
FEDERAL COURT
Date: 20040226
Docket: IMM-1301-04
BETWEEN:
PETER PAL RACZ
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER