Date: 19980819
Docket: IMM-4172-98
BETWEEN:
MEHDI MOTAHARYNIA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
(Delivered from the Bench at Toronto, Ontario
on Wednesday, August 19, 1998)
WETSTON, J.:
[1] These reasons were delivered orally on August 19, 1998. This is an application for a stay of the execution of a removal order. This is a most difficult case. I am of the opinion that there is a serious question in this matter. The removal, prior to a risk assessment, could put the applicant at risk in Iran and as such may violate section 7 and section 12 of the Charter. In this regard, there is a low threshold with respect to whether or not a serious question exists. What is being sought herein is prohibition of the deportation order so that the Humanitarian and Compassionate Grounds application may be considered under section 114(2) of the Act prior to removal. The application for leave is not with respect to another risk assessment under the PDRCC. I am satisfied that given his conversion to Christianity a serious question arises in this matter which could obviously not have been considered in the PDRCC.
[2] The evidence as to irreparable harm is more problematic. Given the evidence before the Court on the Humanitarian and Compassionate Grounds application and therefore this motion, it would appear that in light of the Human Rights record and lack of tolerance in Iran, that if the applicant truly believed in Christianity and intended to practice his faith openly there is a likelihood of personal harm as a result of his conversion.
[3] However, what the Court has before it is only an affidavit on information and belief regarding the personal circumstances of Mr. Motaharynia. He did not file an affidavit. It is a clear and undisputed fact that the conversion to Christianity occurred only after he was advised of his scheduled removal date on March 25, 1998. The applicant went to Barrie, Ontario in April and started to attend Pastor Pennell's church. The conversion took place on April 26, 1998. By letter, Pastor Pennell confirmed that he did the actual conversion and believes it to be sincere. I do not take issue with Pastor Pennell's belief but rather with the applicant's purpose for the conversion. As I stated above, the applicant provided no affidavit but rather an affidavit on information and belief. In my opinion there is a weak evidentiary basis to support the purpose of his conversion.
[4] Rule 81(2) of the Federal Court Rules states that where an affidavit is filed on belief, an adverse inference may be drawn from the failure of a party to provide evidence of personal knowledge of material facts. There also has been a delay of over three months before the Humanitarian and Compassionate Grounds application was filed. This occurred on August 14, 1998, after the applicant`s arrest in Barrie on August 9, 1998.
[5] In conclusion, I find that there is no likelihood of irreparable harm to the applicant if removed to Iran in his personal circumstances since the facts before me suggest a conversion for immigration purposes.
[6] With respect to the balance of convenience I must seriously consider the Minister's legal obligation to deport promptly and as such the balance of convenience is with the Minister.
[7] The application for a stay of the execution of the removal order is dismissed.
"Howard Wetston"
Judge
Toronto, Ontario
August 19, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-4172-98
| STYLE OF CAUSE: MEHDI MOTAHARYNIA |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: WEDNESDAY, AUGUST 19, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: WETSTON, J.
DATED: WEDNESDAY, AUGUST 19, 1998
APPEARANCES:
Ms. Toni Schweitzer
For the Applicant
Ms. Diane Dagenais
For the Respondent
SOLICITORS OF RECORD: Jackman, Waldman & Associates
Barristers & Solicitors
281 Eglinton Avenue, East
Toronto, Ontario
M4P 1L3
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980819
Docket: IMM-4172-98
Between:
| MEHDI MOTAHARYNIA |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER