Digests

Mahjoub v. Canada (Minister of Citizenship and Immigration)

IMM-6880-04

2004 FC 1315, Dawson J.

28/9/04

14 pp.

Motion for stay of removal order in force against applicant providing for imminent removal to Egypt, country of nationality, pending judicial review of Minister's delegate's decision applicant, Convention refugee, should be refouled, returned to Egypt--According to applicant, removal to Egypt would result in torture, subjection to cruel, inhumane, degrading treatment--Tripartite test to be applied to exercise of discretion whether to grant stay set out by S.C.C. in RJR-- MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311--As to what constitutes at law serious issue, case law simply requires applicant show application not frivolous, vexatious--Low threshold--Applicant has established serious issue for purpose of stay application (i.e. whether Minister's delegate erred in concluding exceptional circumstances exist justifying return to torture)--Second requirement that of irreparable harm--At law, irreparable harm must be harm which will occur in interim between now, time application for leave and judicial review adjudicated upon--Irreparable harm one which cannot be cured--Applicant for stay must establish on balance of probabilities facing serious likelihood of harm-- Existence of irreparable harm fact-specific--Evidence must be credible, harm non-speculative--Ministers conceded, if removed to Egypt, unlikely applicant would be permitted to return to Canada if application for judicial review successful --Denial of requested stay would render application for judicial review nugatory in that would be deprived of benefits associated with positive ruling--Irreparable harm established --Final element of tripartite test, balance of convenience, should be determined in favour of applicant--Motion for stay granted, removal order stayed pending final disposition of underlying application for leave and for judicial review on condition applicant remaining in detention.