Date: 20040316
Docket: IMM-2174-04
Citation: 2004 FC 404
Vancouver, British Columbia, Tuesday, the 16th day of March, 2004
Present: THE HONOURABLE MR. JUSTICE O'KEEFE
BETWEEN:
LASZLO GELENCSER
Applicant
- and -
THE SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is a motion by the Applicant for an order staying his removal from Canada which is scheduled for March 17, 2004.
[2] The Applicant is a citizen of Hungary who came to Canada in December 2001. He made a Convention refugee claim which was denied on December 6, 2002.
[3] The Applicant made a PRRA application which was not allowed.
[4] On March 7, 2004, the Applicant married Angela Wilson who is the mother of three children ages 11, 8 and 5.
[5] The Applicant is employed as a machine operator.
[6] The Applicant stated that he was verbally and physically abused in Hungary and that he suffered discrimination to the point of being dismissed from his employment several times. He was also threatened and harassed. This all happened, he stated, because of his Roma ethnicity.
[7] The Applicant stated in paragraph 13 of his affidavit:
Angela and the children would suffer greatly if I were removed from Canada, emotionally as well as financially, because I assist the family financially. I would also suffer greatly if removed because Angela and the children are my family now, and our family would be broken up. It would be very hard on me to be separated from Angela and the children. It would distress me greatly.
Issue: Should the removal order issued against the Applicant be stayed?
Analysis and Decision
[8] It is now accepted that an officer has some discretion and may, in certain circumstances, stay the removal of an applicant (see Wang v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 295 (F.C.T.D.)).
[9] In order to obtain a stay, an 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.
[10] The Applicant must meet all three branches of the tri-partite test.
Serious Issue
[11] The Applicant has raised a serious issue to be tried and that is whether the PRRA officer erred in giving little weight to the family photographs tendered to show the Applicant's Roma ethnicity because the photos were not authenticated.
Irreparable Harm
[12] I am satisfied that the Applicant would suffer irreparable harm if he was to be removed to Hungary. The combination of the loss of his job which provides support for his stepchildren, and his statements that he will be threatened, insulted and beaten in Hungary and the loss of his positive support for the three stepchildren support a finding that he would suffer irreparable harm if he was to be removed to Hungary prior to his leave for judicial review application has been heard.
Balance of Convenience
[13] The balance of convenience favours the Applicant. He is not a threat to the public nor a security risk. The Respondent can remove him if his application does not succeed.
[14] The Applicant's motion for a stay will be granted.
[15] Upon the consent of the parties, the style of cause will be amended by deleting "The Minister of Citizenship and Immigration" as the Respondent and by adding "The Solicitor General of Canada" as the Respondent.
ORDER
IT IS ORDERED that the removal order issued against the Applicant is stayed until leave is denied in his application for leave for judicial review and, if leave is granted, then the order is stayed until the application for judicial review is dealt with by the Court.
IT IS FURTHER ORDERED that the style of cause is amended by deleting "The Minister of Citizenship and Immigration" as the Respondent and by adding "The Solicitor General of Canada" as the Respondent.
(Sgd.) "John A. O'Keefe"
| I HEREBY CERTIFY that the above document |
| is a true copy of the original filed of record in the Registry of the Federal Court on the _______ day of ___________ A.D. 20 ____
Dated this _______ day of ____________ 20 ____
Kim Carlile, Registry Officer |
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2174-04
STYLE OF CAUSE: LASZLO GELENCSER
Applicant
- and -
THE SOLICITOR GENERAL OF CANADA
Respondent
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: March 15, 2004
REASONS FOR ORDER AND ORDER: O'KEEFE J.
DATED: March 16, 2004
APPEARANCES:
Ms. Antya Schrack FOR APPLICANT
Mr. Peter Bell FOR RESPONDENT
SOLICITORS OF RECORD:
Antya Schrack FOR APPLICANT
Barrister & Solicitor
Vancouver, BC
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada