Date: 19990526
Docket: IMM-891-99
BETWEEN:
YASSER MOHAMED ABDALLA and
EHAB MOHAMED ABDALLA
Applicants
AND:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] The applicant is scheduled for deportation on May 28, 1999. The application for stay of the removal order was heard at Montreal on May 25, 1999.
[2] Though the style of cause in the application indicates two applicants, only the second, Ehab Mohamed Abdalla, was subject to the order.
[3] An application for judicial review of the decision dated February 10, 1999 determining that neither of the applicants were found to be Convention refugees was recently perfected. No further steps appeared to have been taken.
[4] A careful review of the decision of the Immigration Refugee Board discloses there was some question as to the credibility of these applicants. The Board commented on the fact that the applicants were not concerned with egyptian authorities as disclosed in their PIFs. What they feared was persecution from the militant group that they had disavowed. Central to the decision is that the applicant was excluded because he had been a member of the Gamaat Islamiya, a terrorist group, and therefore under article 1Fa of the Convention he is an individual that one would consider suspect of having committed crimes against humanity.
[5] I am not prepared to examine in detail all issues raised by this applicant; they will eventually be dealt with by this Court in the event that leave to pursue judicial review of the Board's decision is granted.
[6] My function is to determine whether or not a stay of deportation should be allowed and direct my mind to the tri-part test: a serious issue, not vexatious or frivolous; irreparable harm; balance of convenience.
[7] The reasons issued by the Board are before the Court but a full transcript of the proceedings is not available as of this date.
[8] There is uncontradicted evidence provided in the affidavit of this applicant which suggests that both would have been subjected to a CSIS enquiry and both were found to be of no further concern to this investigative body; it is affirmed in the affidavit that this was raised during the hearing but the Board determined not to comment on this important allegation: they also denied membership in the militant organization.
[9] The Board's finding that this applicant is excluded under article 1Fa without providing any explanation or comment causes me some concern. The facts reveal that these applicants would have indicated in answer to question 37 of their PIFs that they belonged to a terrorist organization, the Gamaat Islamiya. The affidavit evidence discloses that they were not aware of the terrorist activities of this so-called prayer group and fled the country after abandoning their association and disavowing the group; it is alleged that the head of this movement has threatened the security and life of this applicant.
[10] There is no doubt that the Board having determined that the applicant should be excluded under article 1Fa, it is incumbent on it to be absolutely convinced that he fits article 1Fa because such a determination could affect him for the rest of his life. A review of the documentary evidence no doubt supports the Board's finding that the group to which these applicants indicated adherence is a terrorist group. However, there is also no doubt that, should they be returned to Egypt with the stigma of having been found by Canadian authorities to be excluded from Canada under article 1Fa of the Convention, they could be subjected to arrest and perhaps cruel and unusual punishment at the hands of Egyptian authorities who routinely subject suspected terrorists to torture and other inhumane treatment.
[11] Having found that the applicant was excluded under article 1Fa of the Convention without further evidence except an indication in their PIF that they had been members of the Gamaat Islamiya without further analysis of the representations with regard to the possible exoneration by CSIS in my view meets the test that a serious arguable issue has been raised. As to the irreparable harm and balance of convenience, the issue should be resolved in favour of the applicant.
[12] The motion to stay the removal order is hereby granted.
JUDGE
OTTAWA, Ontario
May 26, 1999