Date: 20050623
Docket: IMM-147-05
Citation: 2005 FC 896
Toronto, Ontario, June 23rd, 2005
Present: The Honourable Mr. Justice O'Reilly
BETWEEN:
ALI REZA MONEMI
Applicant
and
THE SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] On January 10, 2005, I granted Mr. Ali Reza Monemi's request for a stay of execution of an order requiring him to leave Canada for Iran on January 11, 2005. I granted Mr. Monemi's request because I was satisfied that he had met the well-recognized three-part test for a stay.
[2] The respondent now asks me to set aside my original order on the grounds that the evidence put before me on the stay motion was fraudulent or, at least, inaccurate. The respondent has placed before me a number of new affidavits attempting to show that the original order should not have been granted. In turn, Mr. Monemi has also presented new affidavits. Some of the affiants have been cross-examined and I have before me the transcripts of their testimony.
[3] I am not persuaded that the original order should be set aside even though, as the respondent strenuously asserts, the reliability of the evidence on which the original order was founded is in doubt. Accordingly, I must dismiss this motion.
I. Issue
Should my order of January 10, 2005 be set aside in light of the new evidence?
II. Analysis
(a) The original order
[4] My order staying Mr. Monemi's removal from Canada was based on the following grounds:
(i) Serious Issue
[5] Mr. Monemi's circumstances presented a serious issue underlying his outstanding application for leave and judicial review of a removal officer's decision not to defer Mr. Monemi's removal. Those circumstances were:
· the officer had failed to consider new information Mr. Monemi had obtained about the treatment of another Iranian citizen which suggested that Mr. Monemi would be at risk in Iran if he were sent there without proper travel documents;
· the officer relied instead on her personal knowledge of the case Mr. Monemi was referring to;
· the officer also relied on her personal knowledge of another case of which Mr. Monemi was unaware; and
· the officer criticized Mr. Monemi for presenting his information at the last minute even though the information had only recently become available.
(ii) Irreparable Harm
[6] Mr. Monemi supported his request for a stay with an affidavit in which the deponent alleged that her sister had been seriously mistreated when she was sent back to Iran without proper travel documents. She was allegedly detained and released only after payment of a substantial bond. I found no evidence that Mr. Monemi could expect to receive the same treatment if he were returned to Iran under similar circumstances. However, I concluded that the degree of actual risk to Mr. Monemi had not been assessed. The removal officer refused to consider his evidence. A second pre-removal risk assessment based on new information had not been completed. Accordingly, Mr. Monemi's removal from Canada would have forced him to face a risk of serious mistreatment that had yet to be properly evaluated. I concluded that these circumstances satisfied Mr. Monemi's obligation to show that he would suffer irreparable harm if his request for a stay were denied.
(iii) Balance of Convenience
[7] Given the circumstances and evidence before me, I concluded that the Minister's obligation to remove persons from Canada who are subject to valid removal orders was superceded by a legitimate concern for human safety.
(b) The Court's jurisdiction to set aside or vary its orders
[8] Rule 399(2) of the Federal Court Rules, 1998, SOR/98-106 permits the Court to set aside or vary an order in two situations:
(a) by reason of a matter that arose or was discovered subsequent to the making of the order; or
(b) where the order was obtained by fraud.
[9] The respondent submits that its investigations have revealed that the evidence on which Mr. Monemi relied in his original stay motion is false. The respondent argues that while Mr. Monemi is not to be blamed for putting that evidence forward, given that he did not know that it was false, the Court should nevertheless set aside its original order.
[10] I am satisfied that the respondent has shown that a matter has arisen since the original order was issued that would permit the Court to consider whether to set that order aside. While some of the evidence the respondent relies on was discovered, or discoverable, before January 11, 2005, much of it came to light thereafter. I need not consider, therefore, whether the stay order was obtained as a result of fraud.
(c) Whether the stay should be set aside
[11] The respondent has put forward evidence that contradicts the evidence Mr. Monemi relied on in his original motion. In summary, this evidence shows that other Iranian citizens who had been sent back without proper travel documents may not have been mistreated when they arrived, or thereafter, contrary to Mr. Monemi's information.
[12] In my view, in the circumstances of this case, this is not enough to justify setting aside the original order. The serious issue that I identified when issuing the original stay order remains. The new evidence does not affect my conclusion on that point whatsoever.
[13] As for irreparable harm, the new evidence does raise doubts about whether persons returning to Iran without proper travel documents are mistreated. But my original conclusion was that irreparable harm can result from the removal of a person from Canada before the risk of their being subjected to serious mistreatment has been properly analyzed. This conclusion could only be set aside it were patently obvious, based on the new evidence, that there was no possibility of any serious mistreatment. However, short of that threshold being met, I would have to weigh all of the evidence and, in effect, perform a risk assessment on my own. This is simply not the Court's role. The respondent's new evidence should be put before the appropriate decision-maker so that a proper assessment of the risk to Mr. Monemi can be carried out.
[14] In light of the foregoing, the balance of convenience continues to favour allowing Mr. Monemi to remain in Canada to pursue his legal remedies. I must emphasize, however, that I share the respondent's concern that a false affidavit may have been filed in this matter. The respondent's additional concern, which I do not share, is that a false affidavit may have caused the Court to issue an order that it might otherwise have denied. The original order was issued primarily on the ground that there was a serious issue arising from the removal officer's handling of Mr. Monemi's allegation of risk. It was not the affidavit alone that caused the stay order to be issued.
(d) Ancillary Issues
[15] Mr. Monemi has asked that I order the record on this motion to be sealed in order to protect third parties. He has also asked for costs. I require additional submissions on these points before disposing of them. Mr. Monemi may file his additional written submissions within ten (10) business days of this order. The respondent shall have five (5) business days from receipt of Mr. Monemi's submissions to file a response. Mr. Monemi shall have five (5) business days to reply.
III. Disposition
[16] The motion is dismissed.
ORDER
THIS COURT ORDERS that:
1. The motion is dismissed;
2. Additional written submissions by the applicant must be filed within ten (10) business days of this order;
3. The respondent shall have five (5) business days from receipt of the applicant's submissions to file a response;
4. The applicant shall have five (5) business days to reply.
James W. O'Reilly
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-147-05
STYLE OF CAUSE: ALI REZA MONEMI v. THE SOLICITOR GENERAL OF CANADA
MOTION DEALT VIA TELECONFERENCE IN OTTAWA, ONTARIO
DATE OF HEARING: June 17, 2005
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MR. JUSTICE O'REILLY
DATED: June 23, 2005
APPEARANCES BY:
Mr. Peter D. Larlee
Mr. Lorne A. Waldman FOR THE APPLICANT
Mr. Peter Bell FOR THE RESPONDENT
SOLICITORS OF RECORD:
LARLEE & ASSOCIATES LAW CORP.
Vancouver, B.C.
WALDMAN & ASSOCIATES FOR THE APPLICANT
Toronto, ON
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, ON