Date: 20031022
Docket: IMM-8078-03
Citation: 2003 FC 1233
Toronto, Ontario, October 22nd, 2003
Present: The Honourable Mr. Justice Lemieux
BETWEEN:
IHSAN BABILLY
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] In this motion, which was argued in conjunction with two other stay applications brought on by the Applicant, Mr. Babilly, a citizen of Syria, seeks a stay of his removal from Canada to Syria pending consideration and final determination of his application for leave and judicial review from the decision of the Enforcement Officer Bradshaw who refused on October 15, 2003 to defer the Applicant's removal.
[2] The Applicant's counsel, on October 10th, 2003 made a written request for deferral based on the following grounds:
1. recent information regarding "the arrest, detention and torture of the Canadian citizen, Mr. Arar, sheds light on and confirms the fact that he [the applicant] would be in great danger for being a suspected member of the Muslims Brotherhood".
2. his outstanding H & C leave application and a leave application to be made in respect of the Pre-Removal Risk Assessment (PRRA) decision by PRRA Officer Morgan.
3. material from Amnesty International "confirming the practice of torture by the Syrian authorities and in particular with respect to members or suspected members of the Muslims Brotherhood" and that such applied to the Applicant.
4. his new evidence i.e. his mother's letter and another from his Mosque Cleric confirming the Syrian authorities were looking for him. (This is the same evidence which was before PRRA Officer Morgan).
[3] In his decision letter of October 15, 2003 PRRA Officer Bradshaw was of the view Applicant's counsel's submissions "focus on issues of risk that I believe have been already been assessed by the PRRA Officer" and referred "the duty ... to carry out removal orders as soon as practicable" (under section 48 of the Act).
[4] In his notes to file, PRAA Officer Bradshaw refers to the new evidence and states it had been reviewed by PRRA Officer Morgan. He also alludes to the Amnesty International Report and recent newspaper articles and discounts them because PRRA Officer Morgan had stated "I acknowledge reports of ill treatment of detainees and of high profile political opponents. I am not, however persuaded that the Applicant would be of interest to authorities upon his return". Enforcement Officer Bradshaw concluded in his notes: "I am satisfied that the risk issues in this case, upon which client counsel is basing its deferral requests have been assessed thoroughly by the PRRA Officer".
[5] In granting the stay in respect of PRRA Officer Morgan's decision in IMM-8077-03, I found that a stay of the Applicant's removal was warranted because all of the elements of the tri-partite test had been made out. I pointed to serious issues to be tried.
[6] Since Enforcement Officer Bradshaw based his refusal to defer on PRRA Officer Morgan's assessment in terms of serious issues, this stay raises the same possible infirmities, acknowledging as I do a more extensive review of the merits is called for. The alleged errors identified in IMM-8077-03 meet this test of a deeper consideration of the merits which I have conducted in this case.
[7] I add another elements on the serious issue prong namely whether Enforcement Officer Bradshaw erred in characterizing the Arar case as a high profile case different from the situation faced by the Applicant.
ORDER
THIS COURT ORDERS that the Applicant's removal is stayed until the final determination of his application for leave and this judicial review.
"François Lemieux"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8078-03
STYLE OF CAUSE: IHSAN BABILLY
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 20, 2003
REASONS FOR ORDER
AND ORDER BY: LEMIEUX J.
APPEARANCES: Ms. Robin L. Seligman
FOR APPLICANT
Ms. Leena Jaakkamainen
FOR RESPONDENT
SOLICITORS OF RECORD: Robin L. Seligman
Barrister & Solicitor
Toronto, Ontario
FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
FOR RESPONDENT
FEDERAL COURT
Date: 20031022
Docket: IMM-8078-03
BETWEEN:
IHSAN BABILLY
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER