Toronto, Ontario, July 17, 2006
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
BHAVANABEN SANJAY KUMAR SHAH
PRIYANKA SANJAY KUMAR SHAH
DEEPALI SANJAY KUMAR SHAH
SONALI SANJAY KUMAR SHAH
and
AND IMMIGRATON
REASONS FOR ORDER AND ORDER
[1] The Court has heard the Applicants' motion for a stay of their removal to India pending the determination of their application for leave challenging the decision of the Risk Assessment Officer rejecting the Applicants' Pre-Removal Risk Assessment (PRRA) application.
[2] The Applicants, in their PRRA application, claim to be at risk in India from Muslim extremists due to the principal applicant's alleged involvement in the B.J.P. Party and his alleged high profile B.J.P. activism.
[3] The Risk Assessment Officer determined that the Applicants were not in need of protection as the applicants were turned down in regard to their evidence by the Refugee Protection Division. Furthermore, no new evidence presented by the applicants could be given any weight when assessing the Applicants' current risk of returning to India. The Applicants had not rebutted the presumption of State Protection. The male Applicant was not even in India in 2002 during the Gujarat Riots for which he claims he would be targeted as a participant. Also, the male Applicant's return to India, from Kenyaand the UAE on two occasions after having allegedly fled, suggest that his subjective fear of persecution was not well founded.
[4] The Applicants' motion for a stay cannot succeed as they do not satisfy the tripartite Toth test. (Toth v. Canada(Minister of Employment and Immigration), [1988] F.C.J. No. 587 (QL), wherein Justice Heald stated at p. 305:
Having concluded that this Court does have jurisdiction to grant the stay asked for herein, it becomes necessary to determine the appropriate tests to be applied in the exercise of that jurisdiction. In the decision of the Supreme Court of Canada in the case of Attorney General of Manitoba v. Metropolitan Stores (M.T.S.) Ltd., et al [1982] 1 S.C.R. 110, Beetz J. speaking for the Court stated at p. 127:
A stay of proceedings and an interlocutory injunction are remedies of the same nature. In the absence of a different test prescribed by statute, they have sufficient characteristics in common to be governed by the same rules and the Courts have rightly tended to apply to the granting of interlocutory stay the principles which they follow with respect to interlocutory injunctions.
This Court, as well as other appellate courts have adopted the test for an interim injunction enunciated by the House of Lords in American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 [Footnote 3 appended to judgment]. As stated by Kerans J.A. in the Black case supra:
The tri-partite test of Cyanamid requires, for the granting of such an order, that the applicant demonstrate, firstly, that he has raised a serious issue to be tried; secondly that he would suffer irreparable harm if no order was granted; and thirdly that the balance of convenience considering the total situation of both parties, favours the order.
[5] The motion for a stay of the applicants' removal is denied.
ORDER
THIS COURT ORDERS that the motion for a stay of the Applicants' removal be denied.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3591-06
STYLE OF CAUSE: SANJAY KUMAR MUKUNDLAL SHAH
BHAVANABEN SANJAY KUMAR SHAH
PRIYANKA SANJAY KUMAR SHAH
DEEPALI SANJAY KUMAR SHAH
SONALI SANJAY KUMAR SHAH
v. MINISTER OF CITIZENSHIP
AND IMMIGRATON
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: July 17, 2006
APPEARANCES:
| Waikwa Wanyoike
|
|
| Martin Anderson
|
SOLICITORS OF RECORD:
| Waikwa Wanyoike Barrister & Solicitor Toronto, Ontario
|
|
| JOHN H. SIMS, Q.C. Deputy Attorney General of Canada
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|