Date: 20031118
Docket: IMM-7667-03
Citation: 2003 FC 1351
BETWEEN:
CHANT KAZARIAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] The applicant commenced this motion, dated November 11, 2003, for an order staying his removal order, scheduled to take effect on November 21, 2003, pending consideration of his application for leave and if leave is granted, of his application for judicial review.
[2] His claim as a refugee was rejected on June 13, 2001. He made an application for Pre- Removal Risk Assessment and his application was rejected on August 18, 2003. He is seeking leave and judicial review of that decision.
[3] He is now asking for stay pending the disposition of his leave application and if it is granted, the disposition of his judicial review application.
[4] The law on granting stays is quite settled. The applicant has to meet the tripartite test in Toth v. Canada (Minister of Employment and Immigration), (1988) 86 NR302. ie. the applicant must demonstrate that there is a serious issue to be tried, that he will suffer irreparable harm if the stay is not granted and that the balance of convenience favours the issuance of the order.
[5] The substantive issues to be tried advanced by the Applicant are:
1. Did the PRRA officer err in concluding that the Applicant is not at risk of persecution, danger of torture , risk to life or risk of cruel and unusual treatment or punishment if returned to his country of nationality?
2. Did the PRRA officer err in law in that he applied the wrong burden of proof to the determination under s. 97 of the IRPA?
[6] In my view, the applicant has not succeeded in proving either. The documentary evidence provided makes it quite clear that prisons in Syria leave a lot to be desired. Political prisoners, perceived terrorists or other persons from which the state may want to extract information can be subject to torture and other cruel and unusual punishment. However the documentary evidence makes no mention of torture being employed against persons refusing to perform military service, against persons being prosecuted for such an offence or against persons who are Christians.
[7] With respect to the burden of proof applicable to s. 97 of the IRPA, this is not relevant to the case at bar. This case turns on whether there is documentary evidence supporting the Applicant's allegations of fear and risk. The documentary evidence does not support his fear that persons refusing to serve in the military are subject to at risk of persecution, danger of torture, risk to life or risk of cruel and unusual treatment or punishment.
[8] Since the test is conjunctive, the motion fails and I need not consider the issues of irreparable harm and balance of convenience.
[9] The motion is dismissed.
"K. von Finckenstein"
J.F.C.
Toronto, Ontario
November 18, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7667-03
STYLE OF CAUSE: CHANT KAZARIAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER 17, 2003
REASONS FOR ORDER BY: von FINCKENSTEIN J.
APPEARANCES BY: Mr. Lorne Waldman
FOR APPLICANT
Ms. Ann Margaret Oberst
FOR RESPONDENT
SOLICITORS OF RECORD: Waldman & Associates
Toronto, Ontario
FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
FOR RESPONDENT
FEDERAL COURT
TRIAL DIVISION
Date: 20031118
Docket: IMM-7667-03
BETWEEN:
CHANT KAZARIAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER