Date: 20031022
Docket: IMM-8077-03
Citation: 2003 FC 1232
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] The Applicant, a citizen of Syria, seeks a stay of his removal to that country pending consideration and final determination by this Court of his application for leave and judicial review of the August 8th, 2003 decision by Pre-Removal Risk Assessment Officer Morgan (received September 24th, 2003) who denied the Applicant was covered by section 96 or paragraph 97(1)(a) or (b) of the Immigration and Refugee Protection Act (the Act).
[2] The tri-partite test of (1) serious issue to be tried (2) irreparable harm and (3) balance of convenience is well-known (See RJR-Macdonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311).
(a) Serious Issue
[3] In this case, the serious issue or strength of the case prong is to be determined on the lower threshold of whether the case advanced (its merits) is frivolous or vexation. This case does not fall within one of the two exceptions mentioned by Justices Sopinka and Cory in RJR-Macdonald, supra. (See page 338 and 339) where a deeper consideration of the merits is warranted.
[4] On this basis, which is not the same standard which will be applied when determining whether leave and extension of time should be granted or not, I accept the Applicant's submissions that a serious issue has been raised whether the PRRA Officer committed the following errors:
1. Whether the PRRA Officer erred in considering and determining that the Applicant's new evidence had a probative value insufficient to persuade him that the Applicant is wanted by the Syrian authorities.
2. Whether the PRRA Officer erred in not coming to grips with the true risk advanced by the Applicant - the perceived political opinion by the Syrian authorities that he was a member of the Muslim Brotherhood.
3. Whether the PRRA Officer who found that the Applicant left Syria illegally in 1999 may be prosecuted erred, when considering the Syria's human rights record and the likehood of torture, he found a sentence of three months and a fine not to be in violation of international standards.
(b) Irreparable Harm
[5] Based on his evidence, his alleged experiences, those of his cousins, those of other persons similarly situated and the documentary reports of human rights conditions in Syria, I find that the Applicant has led sufficient evidence to establish the test of irreparable harm to him if the stay is not granted.
(c) Balance of convenience
[6] The Applicant, having made out a case of serious issue to be tried and irreparable harm, the balance of convenience favours him.
ORDER
THIS COURT ORDERS that the Applicant's removal from Canada is stayed pending the determination and final disposition of his application for leave and judicial review in this proceeding.
"François Lemieux"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8077-03
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-8077-03
BETWEEN:
IHSAN BABILLY
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER