Date: 20030825
Docket: IMM-4799-03
Citation: 2003 FC 997
Toronto, Ontario, August 25th, 2003
Present: The Honourable Mr. Justice Blanchard
BETWEEN:
SUHEL AHMED
Applicant
and
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant, Suhel Ahmed seeks an order for a stay of the execution of the deportation order which is scheduled for August 26, 2003 at 6:00 a.m.. The underlying application for the stay is an application for leave for judicial review of a negative H & C decision.
[2] For a stay to be granted the applicant must meet the tri-partite test established by the Supreme Court of Canada, specifically he must establish that there is a serious issue in the underlying application, that there will be irreparable harm if the stay is not granted, and that the balance of convenience, favours the applicant: Toth v. MEI (1998), 86 NR 302 (FCA).
[3] The applicant has not satisfied me that there is a serious issue to be tried in the underlying application. The applicant submits that since the Minister consented to the judicial review of a first negative H & C decision, and that the second H & C application is based on substantially the same grounds as the first , the second H & C application must necessarily be erroneous. This argument must fail as the applicant has failed to show how the second H & C decision is erroneous. I agree with the respondent's submissions, that the Minister's consent in itself, is not conclusive evidence that another negative H & C is necessarily erroneous. There is no evidentiary basis to support the applicant's contention that the officer erred. To simply state that, "...the immigration officer's negative H & C decision was based on erroneous assessment as to the issue of whether the applicant faces "undue hardship...", is in essence expressing disagreement with the officer's conclusion, and does not establish an error.
[4] Even if I were to accept that a serious issue were established in the underlying application, which I do not, the applicant has not satisfied me on the second ground of the test. The failure of a business as a consequence of removal does not necessarily constitute irreparable harm in every case. In the instant case, there is no evidence as to worth of the business, as to whether attempts were made to sell the business, or secure the employment of an individual who could replace the applicant. The applicant has been in Canada since 1998, and his refugee claim was abandoned. His status in Canada has been anything but certain since his arrival, and yet he took no steps to mitigate the potential harm he alleges.
[5] In the circumstances of this case, I am of the view that the balance of convenience favours the respondent Minister, who has a duty under law to execute removal orders as soon as reasonably practicable. For the above reasons, the motion will be dismissed.
ORDER
THIS COURT ORDERS that the motion for a stay of the Applicant's removal order is dismissed.
"Edmond P. Blanchard"
J.F.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-4799-03
STYLE OF CAUSE: SUHEL AHMED
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: AUGUST 25, 2003
REASONS FOR ORDER
AND ORDER BY: BLANCHARD J.
DATED: AUGUST 25, 2003
APPEARANCES BY: Mr. Alp Debreli
For the Applicant
Ms. Negar Hashemi
For the Respondent
SOLICITORS OF RECORD: Ian Wong
Barrister and Solicitor
Toronto, Ontario
For the Plaintiff
Morris Rosenberg
Deputy Attorney General of Canada Montréal, Quebec
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030825
Docket: IMM-4799-03
BETWEEN:
SUHEL AHMED
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER