Date: 20010206
Docket: IMM-326-01
Citation: 2001 FCT 33
BETWEEN:
TANAS NEDELKOVSKI,
MAGDALENA NEDELKOVSKA
And PANDE NEDELKOVSKI, by
his litigation guardian,
TANAS NEDELKOVSKI
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
DUBÉ J.:
[1] The Applicants seek an injunction staying their removal from Canada pending this Court's determination of their application for leave and for judicial review of the negative decision dated November 20th, 2000 on their Post-Determination Refugee Claimants in Canada claim ("PDRCC").
[2] The Applicants made a Convention refugee claim on September 21st, 1998 and were found not to be Convention refugees. They did not seek leave to apply for judicial review of this decision of the Refugee Division. However, on December 29th, 1999 they applied for a PDRCC claim. They were found not to be at risk on November 23, 2000. They have since filed an application for leave and for judicial review of that decision. It is clear law that the mere filing of such an application does not stay a removal.
[3] While the Refugee Division did not directly refer to the credibility of the principal Applicant, it is clear from their reasons that they did not accept his claim to political involvement with the Liberal Democrat party of Macedonia. They found that he "had no knowledge either of the electoral system or of the number of seats that the Liberal Democrats won in that election". They made a finding of implausibility when they concluded that the Applicant's assertion that he was singled out for persecution, given his minimal involvement, did not "seem reasonable".
[4] The Refugee Division also addressed whether there was an objective basis for the Applicants' alleged subjective fear. They found that the Applicant's minor role in political activism could not be seen by others as a reason for persecution, and that he had not established that the attacks he complained of were politically motivated or were not investigated properly by the police.
[5] The PCDO found that, based on the evidence before him, including the decision of the Refugee Division, the Applicants would not be at risk if they return to Macedonia. He pointed out that Macedonia provided adequate security for its citizens.
[6] The Applicants have not established that there was a serious issue.
[7] As to irreparable harm, the documents before both the Refugee Division and the PCDO reveal the existence of a new democracy in Macedonia, with real political opposition, and a government responsive to human rights. And, again, the Refugee Division and the PCDO found the Applicants would not be at risk if they returned to their country.
[8] The Applicants also claimed that there son Pande will suffer irreparable harm if he is not allowed to complete his school year in Canada since this might affect his chances of admission at a private English high school in Macedonia.
[9] However, it must be noted that Pande spent the first 11 years of his life in Macedonia. He only studied in Canada for two years. As stated by Nadon J.:
| Leaving school before the completion of the school year will no doubt be highly inconvenient and will most likely necessitate the redoing of their school year. However, this does not constitute irreparable harm.1 |
[10] In the instant case, the disruption to Pande's schooling cannot be described as irreparable. He will return to his own country, and may resume his education in his own language if he so wishes.
[11] Finally, the balance of convenience clearly favours the Respondent. It is in the public interest that the imperatives of the Immigration Act be observed. Section 48 of the Act provides that a removal order shall be executed as soon as reasonably practicable. Consequently the application is dismissed.
"J.E. Dubé"
J.F.C.C.
Toronto, Ontario
February 6, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-326-01 |
| STYLE OF CAUSE: TANAS NEDELKOVSKI, |
| MAGDALENA NEDELKOVSKA |
| And PANDE NEDELKOVSKI, by |
| his litigation guardian, |
| TANAS NEDELKOVSKI |
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
| DATE OF HEARING: MONDAY, FEBRUARY 5, 2001 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: DUBÉ J. |
DATED: TUESDAY, FEBRUARY 6, 2001
| APPEARANCES BY: Mr. D. Clifford Luyt |
| For the Applicants |
| Ms. Candice Welsch |
| For the Respondent |
| SOLICITORS OF RECORD: D. Clifford Luyt |
120 Eglinton Avenue East
Suite 302
| Toronto, Ontario |
M4P 1E2
| Tel No.: (416) 482-5531 |
| For the Applicants |
Morris Rosenberg
Deputy Attorney General of Canada
| For the Respondent |
FEDERAL COURT OF CANADA
Date: 20010206
Docket: IMM-326-01
BETWEEN:
| TANAS NEDELKOVSKI, |
| MAGDALENA NEDELKOVSKA |
| And PANDE NEDELKOVSKI, by |
| his litigation guardian, |
| TANAS NEDELKOVSKI |
Applicants
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
| REASONS FOR ORDER |
__________________
1 Mahadeo v. Canada (M.C.I.), [1999] F.C.J. No. 294 at para. 5 (F.C.T.D.) Carling c. Canada (M.C.I.), [2000] A.C.F. no. 2086 Gomes v. Canada (M.C.I"), [1999] F.C.J. No. 1362 (F.C.T.D.)