Date:20010129
Docket: IMM-6462-00
BETWEEN:
KALIM RAHMAN, IMELDA RAHMAN,
SAMUEL RAHMAN AND AARON RAHMAN
Applicants
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HENEGHAN J.
[1] Kalim Rahman, Imelda Rahman, Samuel Rahman and Aaron (the "Applicants") have filed Notices of Motion seeking a stay of execution of a direction to report by which their removal from Canada is scheduled for Tuesday, January 30, 2001.
[2] The Applicants are citizens of Bangladesh. They currently reside in London, Ontario. They legally entered Canada in 1992/1993 under a valid Canadian visitor's visa. They have remained in the country without status since 1996. Mr. Kalim Rahman owns and operates a business, and the children Samuel and Aaron are full time students in Ontario schools.
[3] The Applicants applied for convention refugee status in Canada in 1998, alleging fear of persecution on the basis of religion and nationality. Specifically, the problems perceived by the Applicants arise from the inter-religious marriage of the adult Applicants in which the husband is a Muslim and the wife is a Catholic, and the two children are being raised as Catholics.
[4] Their application was rejected by the Convention Refugee Determination Division of the Immigration and Refugee Board by a decision delivered on June 21, 1999. Subsequently, the Applicants applied for consideration as members of the post-determination refugee claimants in Canada class. That claim was investigated and decided by M. Mayhew, post-claim determination officer. In her decision dated September 7, 2000, which was delivered to the Applicants on September 27, 2000 she determined that the Applicants are not members of that class.
[5] The Applicants made an application pursuant to section 114(2) of the Immigration Act, R.S.C. 1985, c. I-2 on September 29, 2000. That application is still outstanding.
[6] On December 19, 2000 the Applicants filed an application for leave and judicial review in relation to the decision made by M. Mayhew. That application is the subject of cause number IMM-6462-00. The Applicants filed a motion for a stay in the context of the proceeding.
[7] On December 29, 2000 the Applicants filed an application for leave and judicial review in relation to the direction to report issued by Harry Adamidis, Enforcement Officer, dated December 15, 2000, directing the removal of the Applicants on February 1, 2001. That direction to report is the subject matter of cause number IMM-6622-00. The Applicants filed a Notice of Motion for a stay in this proceeding as well.
[8] The Applicants presented arguments on the basis of the three part test set out by the Federal Court of Appeal in Toth v. Canada (Minister of Employment and Immigration) (1988), 6 Imm.L.R. (2d) 123, 86 N.R. 302 (F.C.A.). An applicant seeking a stay of execution must show that there is a serious issue arising from the underlying applications for judicial review, that irreparable harm will result if the remedy sought is not granted and finally, that the balance of convenience favours the Applicant.
[9] In the present matter, the Applicants say that both applications for judicial review are based on serious issues. In the case of the challenge to the decision of the decision of M. Mayhew, determining that the Applicants are not members of the PDRC class, the Applicants say that the Officer unfairly and improperly fettered her discretion by relying too heavily upon the decision of the CRDD and by failing to appreciate the significance of country conditions in Bangladesh.
[10] In relation to the challenge to the decision of Enforcement Officer Harry Adamidis, the Applicants say that he also unfairly and improperly fettered his discretion by refusing to hear submissions about the Applicants' circumstances including the risk they would face upon their return to Bangladesh. The Applicants also say that the Enforcement Officer failed to consider relevant considerations, including the fact that the Applicants have an outstanding application for landing based on humanitarian and compassionate grounds. Third, the Applicants say that the Enforcement Officer erred by refusing to defer removal until after the attendance of the Applicant Kalim Rahman as a witness in criminal proceedings scheduled for trial in Ontario some time in 2001.
[11] The Applicants claim that they will suffer irreparable harm if they are forced to leave Canada at this time. That harm is primarily economic loss, resulting from the forced sale of their home and business. The Applicants also claim that disruption to the education of their minor children is irreparable harm which meets the standard identified in Toth, supra.
[12] Finally, the Applicants argue that in all the circumstances, the balance of convenience lies in their favour in the matter of staying their removal from Canada.
[13] The Respondent argues that the underlying application for judicial review do not raise to serious issues for trial. Furthermore, the Respondent says that the evidence does not support the Applicants' claims that they were treated unfairly or that the decision-makers in question, that is the Enforcement Officer and the PCO Officer, failed to properly discharge their duties and exercise discretion in a proper manner.
[14] The Respondent also denies that there is any evidence to support the Applicants' claims for irreparable harm, whether economic harm or harm to the educational prospects of their minor children. Finally, the Respondent submits that the balance of convenience lies in her favour.
[15] Having heard the arguments of the Applicants and the Respondent and reviewed the evidence, I am not persuaded that the Applicants have met the first part of the test. I am not satisfied that they have shown, on the evidence, that a serious issue for trial exists in relation to either the decision of the Enforcement Officer or the decision of the PCO. While the threshold for establishing a "serious issue" is not high, for the purposes of an application for judicial review, there is still a minimum burden upon an applicant to show that there is at least an arguable case arising from the issues grounding an application for judicial review.
[16] Likewise, I am not satisfied that the Applicants have demonstrated that they will suffer irreparable harm as a result of their removal from Canada at this time. There is no evidence to support their arguments that their removal from Canada at this time and the consequential sale of their house and business in Canada, will erode all their assets in Canada or prevent their reestablishment in this country, if the outstanding application pursuant to section 114(2) of the Immigration Act is successful.
[17] Since I have found that the Applicants have failed to meet the requirements of the first and second requirements of the Toth test, it is not necessary for me to comment on the issue of balance of convenience.
[18] The motions for a stay of execution of the deportation order are dismissed.
[19] These reasons will be filed in IMM-6462-00 and placed on IMM-6622-00 and have the same force and effect as if it were filed.
"E. Heneghan"
J.F.C.C.
Ottawa, Ontario
January 29, 2001