Date: 20010426
Docket: IMM-1671-01
IMM-1674-01
Neutral citation: 2001 FCT 392
BETWEEN:
KHADIJEH SHAHPARI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is a motion by the applicant for an order staying her removal from Canada until:
1. Such time as her H & C application made pursuant to subsection 114(2) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") can be assessed on its merits;
2. Such time as a proper risk assessment can be made with respect to returning the applicant to Iran; and
3. Such time as a decision is rendered by this Court on an application for leave to appeal a negative decision on a post-determination application for landing.
[2] The applicant is a citizen of Iran whose four cousins were executed by the Iranian government in 1980.
[3] From 1981 to 1984, the applicant gave shelter to several Kurdish women whose husbands had been executed by the Iranian government.
[4] The applicant obtained a visa to go to France and, in 1984, travelled to France with her children in fear that she would be persecuted if the regime in Iran learned about her support for the Kurds.
[5] In August, 1994 the applicant arrived in Canada and made a refugee claim which was denied by the Board. The applicant was unsuccessful in her judicial review of this decision.
[6] In March, 1999 the applicant received a negative response to her PDRCC (Post-Determination Refugee Claimants in Canada Class).
[7] The respondent refused to do a further risk assessment of the applicant's return to Iran in March of 2001, when she was about to be removed to Iran.
[8] The applicant's daughter was successful in her H & C application on January 30, 2001.
[9] The applicant stated in her affidavit that she feared persecution if she was returned to Iran.
Issue
[10] Should an order issue staying the removal of the applicant from Canada?
[11] In order to grant a stay, I must be satisfied that the applicant has met the tri-partite test outlined in Toth v. Canada (Minister of Employment and Immigration) (1988), 6 Imm. L.R. (2d) 123 (F.C.A.). The applicant must meet all three parts of the tri-partite test. Summarized, these parts are:
1. Has the applicant demonstrated that she has a serious issue to be tried?
2. Has she demonstrated that she would suffer irreparable harm if the stay order was not granted?
3. Has she demonstrated that the balance of convenience considering the total situation of both parties favours the order being granted?
[12] Serious Issue
The applicant has raised a serious issue to be tried in that she states that the officer should have conducted a new and fresh risk analysis on her removal to Iran. The analysis made available was done at a time when the applicant could still go to France. I take the applicant's current statements that she would go to Iran to mean that she [could only go there] or [would go there] if all her legal options in Canada failed.
[13] Irreparable Harm
I find that if the applicant was to be persecuted, as she stated in her affidavit, on her return to Iran, this would constitute irreparable harm. As well, if she was persecuted for her association with the Kurdish movement, she would probably not be allowed to leave Iran, any success that she may have in her Court proceedings would then become moot.
[14] Balance of Convenience
I find that the balance of convenience favours the applicant and that the respondent will not be unduly delayed in carrying out her duties under the Act.
[15] The removal of the applicant from Canada is hereby stayed until the later of:
4. The time when her H & C application made pursuant to subsection 114(2) of the Act is decided;
5. The time when the applicant's applications for judicial review are finally disposed of by this Court.
ORDER
[16] IT IS ORDERED THAT the removal of the applicant from Canada is hereby stayed until the later of:
6. The time when her H & C application made pursuant to subsection 114(2) of the Act is decided;
7. The time when the applicant's applications for judicial review are finally disposed of by this Court.
"John A. O'Keefe"
J.F.C.C.
Toronto, Ontario
April 16, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1671-01
IMM-1674-01
STYLE OF CAUSE: KHADIJEH SHAHPARI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: MONDAY, APRIL 23, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: O'KEEFE J.
DATED: THURSDAY, APRIL 26, 2001
APPEARANCES BY: Mr. David Orman
For the Applicants
Mr. Michael Butterfield
For the Respondent
SOLICITORS OF RECORD: David Orman
Barrister & Solicitor
500 - 70 Bond St.
Toronto, Ontario
M5B 1X3
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010426
Docket: IMM-1671-01
IMM-1674-01
Between:
KHADIJEH SHAHPARI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER