Date: 20041221
Docket: IMM-9983-04
Ottawa, Ontario, this 21st day of December, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
FARHAD HATAMI and ADILA BAGHIROVA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicants Farhad Hatami and Adila Baghirova request an Order prohibiting the Minister from removing them from Canada on January 6, 2005. The applicants are citizens of Iran who have lived most of their lives in Azerbaijan. They came to Canada and unsuccessfully claimed refugee status. The underlying application on this motion is a negative Pre-Removal Risk Assessment (PRAA) that was completed September 10, 2004 and communicated to them on November 18, 2004.
[2] The test to be applied on an application for a stay of removal is the tripartite test in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A).
[3] I have considered the materials submitted and heard counsel for the parties. The applicants submit that there are a number of serious issues, including the standard of proof used by the PRAA officer, the significant documentary evidence that contradicted the officer's decision, and the personal characteristics of the applicants not having been considered cumulatively. The threshold for accepting that a serious issue exists is a low one, and I accept that the applicants have raised serious questions related to at least one of these issues, namely the standard of proof employed.
[4] While I do not find that the applicants would suffer any irreparable harm from a removal to the United States, I also accept that it is likely that the applicants will be removed to either Azerbaijan or Iran from there. In my view, the applicants have met the threshold for establishing the risk of irreparable psychological or physical harm should they be removed to Iran or Azerbaijan from the United States.
[5] I also accept that the Minister has an interest in upholding the Immigration and Refugee Protection Act by executing deportation orders as soon as is reasonably practicable, but find that the potential harm the applicants would suffer outweighs the public interest in this case. The balance of convenience favours the granting of this application.
[6] As a result of the foregoing, the application for a stay of removal will be allowed.
ORDER
THIS COURT ORDERS that the application for a stay of the removal of Farhad Hatami and Adila Baghirova is granted pending the final disposition of the application for judicial review of the Pre-removal Risk Assessment of September 10, 2004.
" Richard G. Mosley "
F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-9983-04
STYLE OF CAUSE: FARHAD HATAMI
ADILA BAGHIROVA and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December 20, 2004
REASONS FOR ORDER
AND ORDER BY: The Honourable Mr. Justice Mosley
APPEARANCES:
John Grice FOR THE APPLICANT
Angela Marinos FOR THE RESPONDENT
SOLICITORS OF RECORD:
JOHN GRICE FOR THE APPLICANT
Davis & Grice
Barristers & Solicitors
Toronto, Ontario
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario