Date: 20030925
Docket: IMM-5591-03
Citation: 2003 FC 1100
Toronto, Ontario, this 25th day of September, 2003
Present: The Honourable Mr. Justice O'Reilly
BETWEEN:
ELEMER BURAI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Burai has been ordered to leave Canada for Hungary on October 3, 2003. He has asked me to stay the execution of that order while he pursues further legal remedies in Canada.
[2] I find that Mr. Burai has failed to show that a serious issue arises in his case and, therefore, that he cannot satisfy the first of the three mandatory elements of the test for a stay.
[3] Mr. Burai argued that the officer who evaluated his application for a humanitarian and compassionate exemption gave too much emphasis to the issue of personal risk. Mr. Burai had mentioned in his application that he feared mistreatment in Hungary because of his Roma ethnicity. In due course, the officer asked a colleague to analyze that risk. The colleague concluded that there was very little likelihood of risk to Mr. Burai. Mr. Burai was given a chance to respond to that opinion and did so. Ultimately, the first officer decided that Mr. Burai would not suffer "undue, undeserved or disproportionate hardship if required to leave Canada and apply for permanent residence from abroad".
[4] Counsel for Mr. Burai, Mr. Rocco Galati, argued that the issue of humanitarian and compassionate considerations, on the one hand, and personal risk assessment, on the other, should be entirely separate. The Immigration and Refugee Protection Act, S.C. 2001, c. 27, separates them and subjects them to different evidentiary thresholds and legal burdens. So, the argument goes, officers who evaluate humanitarian and compassionate applications should not be swayed by factors that are relevant to a risk assessment. The latter is a distinct and entirely separate process.
[5] However, I see no basis for the argument that an officer who is reviewing a humanitarian and compassionate application should not consider the issue of personal risk - especially in the situation, as here, where the applicant specifically raised the question of risk in his application. It strikes me that it is entirely reasonable for the officer to request a risk opinion from a colleague and refer to it in the final analysis of the humanitarian and compassionate application. Further, I see no evidence in this particular case that the officer failed to consider other relevant factors. In other words, the officer did not give disproportionate emphasis to the risk opinion. Mr. Galati observed that the dual processes of risk assessment are confusing, and that may be so. However, confusion alone does not amount to a serious issue of law.
[6] Mr. Galati also argued that a statutory stay prevents Mr. Burai from being removed. Mr. Galati, as an officer of the Court, assured me that his client has not yet received a separate pre-removal risk assessment and, therefore, argued that Mr. Burai cannot be removed according to s. 232 of the Immigration and Refugee Protection Regulations. Counsel for the Respondent, Mr. Gordon Lee, stated that he understood that Mr. Burai had received his negative risk assessment at the same time as he received the removal order. A copy of the assessment was included in the respondent's materials submitted on this motion.
[7] Because this issue arose just prior to the hearing, neither party supplied affidavit evidence regarding the status of the pre-removal risk assessment. I am very reluctant to make any definitive order in the absence of that evidence. However, out of caution, I am willing to order a temporary stay in order to ensure that Mr. Burai has an opportunity to make an application for leave to seek judicial review in respect of the pre-removal risk assessment, on the assumption that he was made aware of that assessment as of the date of the hearing. Therefore, execution of the removal order is stayed until the expiry of fifteen (15) days from the date of this order.
ORDER
THIS COURT ORDERS that:
1. The execution of the removal order is stayed until the expiry of fifteen (15) days from the date of this order.
"James W. O'Reilly"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5591-03
STYLE OF CAUSE: ELEMER BURAI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: SEPTEMBER 22, 2003
REASONS FOR ORDER
AND ORDER BY: O' REILLY J.
DATED: SEPTEMBER 25, 2003
APPEARANCES: Mr. Rocco Galati
For the Applicant
Mr. Gordon Lee
For the Respondent
SOLICITORS OF RECORD: Mr. Rocco Galati
Galati, Rodrigues & Associates
Barristers & Solicitors
Toronto, Ontario
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT
Date: 20030925
Docket: IMM-5591-03
BETWEEN:
MARCOS DAVID BONIOWSKI and
SALOME CECILIA ABALLAY
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER