Date: 19980513
Docket: IMM-2094-98
BETWEEN:
MOHAMMAD ALI NASTRANI AND
HOURILAGHA KHERADPARVARDEH
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY, J.:
[1] The applicants have established, at least for the purposes of this motion to stay their deportation to Iran, a serious issue concerning the immigration officer fettering her discretion in her assessment of their application for humanitarian and compassionate considerations.
[2] The applicants rely on the immigration officer's oral statement that she never accepted a case where the persons have been on welfare.
[3] Of equal concern and relevance are her written notes concerning her refusal to deal with the applicants' fears of returning to Iran:
| The couple also expressed concern over returning to Iran, given the political climate there, but they have exercised their right to claim refugee status and pursue a refugee claim in Canada and that claim was refused. I will therefore not address concerns raised about their fears of returning to Iran. |
[4] The panel of the Convention Refugee Determination Division accepted the applicants' credibility and dismissed their claims for refugee status on other grounds. The applicants have at least four children who were landed in Canada as refugees from Iran and who are now Canadian citizens. The applicant Nastrani, over and above the difficulties encountered by his children, was in prison for fourteen months for having assisted one of his daughters flee Iran after obtaining her release from a ten-year prison sentence and for his own involvement in a political opposition group. He was released from prison in early 1993. Two other sons of the applicants were executed in 1982 for their involvement with the same political opposition group. The applicants have no remaining family in Iran.
[5] In concluding that the applicant had no prospective well-founded fear of persecution, the C.R.D.D. panel noted that it was not without sympathy for their plight and added that humanitarian and compassionate considerations were beyond its jurisdiction. The immigration officer decided not to consider the applicants' concerns about returning to Iran because their refugee claim was refused. It would seem to me that the panel's acceptance of the credibility of the applicants' suffering in Iran and its comments concerning humanitarian and compassionate considerations are issues that should have formed part of the immigration officer's assessment. Her written decision indicates that they were not.
[6] The applicants' argument that the immigration officer's oral statement and written decision demonstrate that she fettered her discretion is not one which is frivolous or vexatious. The test of serious issue is met.
[7] Similarly, on the basis of the facts set out in paragraph 4, I am satisfied that the applicants would suffer irreparable harm upon their return to Iran. The applicant Nastrani is 76 and his spouse is 70. The risk of harassment and possible detention, even for a short period of time, upon their return to Iran is real. This is particularly relevant in view of his imprisonment only five years ago. This is harm to which the applicants, at their age and with their family's history in Iran, need not be exposed. For the same reasons, the respondent's usual interest in executing the removal order as soon as reasonably practicable is outweighed by the particular circumstances of these applicants in whose favour the balance of convenience lies.
[8] The application for a stay of the removal order to be executed today is granted.
"Allan Lutfy"
Judge
Toronto, Ontario
May 13, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-2094-98
| STYLE OF CAUSE: |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: MAY 12, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: LUTFY, J.
DATED: MAY 13, 1998
APPEARANCES:
Ms. Maureen Silcoff
For the Applicants
Mr. Toby J. Hoffman
For the Respondent
SOLICITORS OF RECORD:
Lewis & Associates
Barristers & Solicitors
175 Harbord Street
Toronto, Ontario
M5S 1H3
For the Applicants
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980513
Docket: IMM-2094-98
Between:
| MOHAMMAD ALI NASTRANI AND HOURILAGHA KHERADPARVARDEH |
Applicants
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER