Federal Court Decisions

     IMM-4279-96

BETWEEN:

     AHMAD ABDULAAL AL SAGBAN

     Applicant

     - AND -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

     (Delivered orally on the Bench

     at Vancouver, B.C., on April 28, 1997, as edited)

McKEOWN J.

     The applicant, a citizen of Iraq, seeks a stay of a deportation order made against him on September 22, 1994. The issue is whether the applicant will suffer irreparable harm.

     Although the deportation order itself is not subject to judicial review, I agreed to hear this matter since it is alleged that the irreparable harm includes a threat to the applicant's life and liberty. The applicant is seeking judicial review of the decision dated November 13, 1996 of the Appeal Division of the Immigration and Refugee Board (the tribunal).

     The applicant relies on his statements in the transcript at the tribunal hearing which was attached to his affidavit in his application for judicial review. He did testify that his father left Iraq in 1984 after his difficulties with Saddam Hussein became known. The applicant's father was granted asylum in Egypt and has never returned to Iraq. The applicant testified he would be executed if he were returned to Iraq because he left Iraq without going into the army. He left Iraq in 1982 just a few months before his 18th birthday. The tribunal made no findings on the applicant's credibility and, therefore, adverse credibility findings were not made. The applicant did not apply for refugee status upon entering Canada because he had received landed immigrant status.

     I am very concerned about the applicant's failure to file an affidavit in support of this application for a stay, spelling out his fears. I am also concerned about the affidavit of Ms. Fairuz Yamulky filed in support of this application since there are several mistakes therein. However, there is objective evidence which supports the applicant's testimony before the tribunal. I note particularly the statements in the documents attached to Ms. Shamira Jessa's affidavit. I was also concerned about the mistakes in the statements in exhibits to the affidavit of Michael Simpson which were supposed to support the respondent's position.

     I note the following from the reasons of the tribunal at pp. 6-7:

But the most positive factor in his favour is the hardship that he would suffer if returned to Iraq. Exhibit A-1 contains many articles which make it clear that Iraq is not a safe place to be. As a person considered to be a deserter, and as the eldest son of a prominent Iraqi family which was opposed to the government of Sad[d]am Hussein, he would be in a very difficult position. His stepmother said that the only thing that would happen would be that they would hang him. However, control over the location to which the appellant is removed is a matter solely for the Minister's decision. The Appeal Division finds that it would be an extreme hardship for the appellant to be returned to Iraq.      [footnote omitted]

     Normally, hardship does not equal irreparable harm. I note that the tribunal used the words "extreme hardship" and in my view, in the circumstances of this case, the applicant's life will be in danger if he is returned to Iraq. For these reasons I am satisfied that there will be irreparable harm to the applicant if he is returned to Iraq.

     The balance of convenience favours a stay. I will grant a stay of the applicant's deportation order until the disposition of the applicant's leave application and in the event the applicant obtains leave, until the disposition of the judicial review application.

                         "William P. McKeown"

                                 Judge

TORONTO, ONTARIO

May 15, 1997

     FEDERAL COURT OF CANADA

     Names of Counsel and Solicitors of Record

COURT NO:                      IMM-4279-96

STYLE OF CAUSE:              AHMAD ABDULAAL AL SAGBAN

                         - and -

THE MINISTER OF CITIZENSHIP

                         AND IMMIGRATION

DATE OF HEARING:              APRIL 28, 1997

PLACE OF HEARING:              VANCOUVER, B. C.

REASONS FOR ORDER BY:      McKEOWN, J.

DATED:                      MAY 15, 1997

APPEARANCES:

                         Mr. Chris Elgin

                         For the Applicant

                     Ms. Esta Resnick

                         For the Respondent

SOLICITORS OF RECORD:

                     McPherson, Elgin & Cannon

                     100-111 Water Street

                     Vancouver, B.C.

                     V6B 1A7

                         For the Applicant

                     Department of Justice

                     900-840 Howe Street

                     Vancouver, B.C.

                     V6Z 2S9

                     George Thomson

                     Deputy Attorney General

                     of Canada

                         For the Respondent

                     FEDERAL COURT OF CANADA

                     Court No.:      IMM-4279-96

                     Between:

                     AHMAD ABDULAAL AL SAGBAN

                        

                 Applicant

                     - and -

THE MINISTER OF CITIZENSHIP

                     AND IMMIGRATION

     Respondent

                     REASONS FOR ORDER