Date: 20010412
Docket: IMM-1711-01
Neutral Citation: 2001 FCT 325
BETWEEN:
BALAZS MOLNAR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The Applicant has filed a motion for a Stay of Removal Order from Canada. The Applicant's removal is scheduled for April 19, 2001. The underlying application for leave and for judicial review is with respect to the Applicant's negative Post-Determination Refugee Claimants in Canada ("PDRCC") decision of B. Sachs-Syer, Post Claim Determination Officer ("PCDO"), dated February 28, 2001. The Departure Order, became effective March 27, 2000 and its validity is not in issue.
[2] The Applicant, a Roma, is a citizen of Hungary, who came to Canada on March 12, 1998, subsequently left the country and then re-entered Canada on May 16, 1998.
[3] In 1997, the Applicant, while in Hungary was attacked by a group of skin heads and beaten. He was injured and suspects his wife's parents were behind the attack.
[4] In May 1998, the Applicant made a refugee claim in Canada, which was refused. The Applicant did not seek leave to challenge the decision of the Refugee Board. The Applicant made a PDRCC application and was found not to be a member of the PDRCC class on February 28, 2001.
[5] In December 1998, the Applicant married Vivien Huszar, a Hungarian citizen, but not a Roma. The Applicant claims that Vivien Huszar's parents disapproved of him and went to great lengths to end his relationship with their daughter, even to the point of threatening the Applicant.
[6] The Applicant claims to have suffered discrimination and prejudice in Hungary because of his Roma ethnicity and claims that his relationship and marriage to Vivien Huszar has further put his personal security at risk
[7] The Applicant claims to fear reprisal from his wife's parents, who are not Roma, should he be returned to Hungary.
[8] The PCDO found that there was insufficient evidence to support that the parents of the Applicant's wife are aware of his marriage to their daughter or that there would be cognizant of the Applicant's return to Hungary should he decide to reside away from his in-laws. The PCDO further acknowledged that there is discrimination against the Roma in Hungary, but found that in the circumstances of the Applicant's case, there was insufficient persuasive evidence to support that the Applicant would be subject to an objectively identifiable risk, pursuant to the PDRCC mandate, and, therefore, he should be returned to Hungary.
[9] In order fro this court to grant a stay of proceedings, the test to apply is similar to that for an interlocutory injunction[1]. The test requires that the Applicant demonstrate:
(1) that the Applicant has raised a serious issue to be tried in the underlying judicial review application;
(2) that the Applicant would suffer irreparable harm if no order was granted; and
(3) that the balance of convenience considering the total situation of both parties favours the grant of the stay.
[10] At the hearing of the application for the stay of the removal order, counsel for the Applicant argued that the PCDO, "trivialized and white washed," the severity of the problems and risks the Applicant would face should he be returned to Hungary. In particular, the Applicant asserts that the negative decision on his PDRCC application should be overturned because the risk assessment was deficient for the following reasons:
a) The PCDO failed to appreciate the significance of the fact that the Applicant married in Canada, away from his family and not in Hungary.
b) The PCDO officer failed to conduct a fair and balanced assessment of the PDRCC application in that his reference to the documentation was selective and one sided, and ignored other credible evidence that showed a very different picture.
c) The PCDO decision was imbalanced by comparison to a 46 page decision by the Refugee Division in T-99-82565, rendered July 6, 2000 by Members Yasmeen Siddiqui and Berzoor Popatia.
d) The PCDO officer distorted the true situation of the Roma in Hungary and as a result did not properly appreciate the risks to the applicant.
e) In view of the widespread discrimination against Roma in Hungary, as established by the documentary evidence, the PCDO officer, ought to have found the applicant at risk of inhumane treatment in Hungary.
f) The PCDO officer was unduly influenced by the negative decision of the refugee Division, and therefore fettered his discretion.
[11] Having heard the argument of the parties and having carefully read and reviewed all of the evidence, I am not persuaded that the Applicant has met the first part of the tri-partite test. I am not satisfied that he has shown on the evidence that a serious issue for trial exist in relation to the decision of the PCDO.
[12] While the threshold for establishing a "serious issue" is not high for the purposes of a stay application, there is still a minimum burden upon an Applicant to show that there is at least an arguable case arising from the issues in the underlying application for judicial review.
[13] I am satisfied that the PCDO, in rendering his decision, considered the PDRCC submissions of the Applicant, the attached documentary evidence on country conditions, the Applicant's Personal Information Forms and the decision and reasons of the CRDD. The PCDO concluded that the Applicant's assertion, that he will be subject to risks contemplated by the regulations, is not supported by objective fact.
[14] Following my review of this matter, I have therefore concluded that the Applicant has not raised a serious issue to be tried in the underlying judicial review application.
[15] Even if I were to give the Applicant the benefit of the doubt and conclude that the Applicant raised a serious issue to be tried, the Applicant has not established that he would suffer irreparable harm if returned to Hungary. A finding of irreparable harm requires the production of non-speculative evidence as to irreparable harm[2]. To establish irreparable harm, the Applicant relies on the documentary evidence of conditions of Roma in Hungary and on the previous threats against him by his wife's parents. In my view, this is insufficient. The Refugee Division determined that the Applicant was not a Convention refugee, and the Applicant received a negative PDRC assessment. The Applicant has not established irreparable harm.
[16] Since I have found that the Applicant has failed to meet the first and second requirements of the Toth test, it is not necessary for me to comment on the issue of balance of convenience.
[17] For the above reasons, the motion for Stay of the removal order is dismissed.
"Edmond P. Blanchard"
Toronto, Ontario
April 12, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1711–01
STYLE OF CAUSE: BALAZS MOLNAR
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
DATE OF HEARING: MONDAY, APRIL 9, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: BLANCHARD J.
DATED: THURSDAY, APRIL 12, 2001
APPEARANCES BY: Mr. Mark Rosenblatt
For the Applicant
Ms. Mielka Visnic
For the Respondent
SOLICITORS OF RECORD: Rosenblatt Associates
Barristers & Solicitors
1000-335 Bay Street, 10th Floor
Toronto, Ontario
M5H 2R3
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010412
Docket: IMM-1711-01
BETWEEN:
BALAZS MOLNAR
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER