92-T-99
Alexandre Spass Pavlov (Applicant)
v.
The Minister of Employment and Immigration
(Respondent)
INDEXED AS: PAVLOV Y. CANADA (MINISTER OF EMPLOYMENT
AND IMMIGRATION) (T))
Trial Division, Reed J.—Ottawa, February 26, 1992.
Immigration — Deportation — Application to stay deporta
tion order — Board member who rejected Bulgarian's refugee
claim author of sample decision formats (negative) for claim
ants from Bulgaria — Covering note accompanying sample
concluding "We await your next command" referring to tele
gram from Field Marshal Earl Alexander of Tunis to King
George VI advising: "I have thrown your Majesty's enemies
from North Africa" — Application allowed as serious question
to be tried (whether Board member biased), likelihood of suffi
cient harm as applicant likely to be returned to Bulgaria if
deported to U.S.A. as lacking status there, and balance of con
venience in his favour.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.
Immigration Act, R.S.C., 1985, c. I-2, s. 82.1 (as enacted
by R.S.C., 1985 (4th Supp.), c. 28, s. 19).
CASES JUDICIALLY CONSIDERED
APPLIED:
Toth v. Canada (Minister of Employment & Immigration)
(1988), 6 Imm. L.R. (2d) 123; 86 N.R. 302 (F.C.A.).
COUNSEL:
Helen P. Luzius for applicant.
Leigh A. Taylor for respondent.
SOLICITORS:
Helen P. Luzius for applicant.
Deputy Attorney General of Canada for respon
dent.
The following are the reasons for order rendered in
English by
REED J.: An application is brought for the stay of a
deportation order which is to be executed on Febru-
ary 27, 1992. The stay is requested in the context of
an application which has been filed pursuant to sec
tion 82.1 of the Immigration Act [R.S.C., 1985, c. I-2
(as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 19)]
seeking leave to commence a proceeding under sec
tion 18 of the Federal Court Act [R.S.C., 1985, c.
F-7] to have a decision set aside which found that
there were insufficient humanitarian and compassion
ate grounds to justify granting the applicant landed
status from within the country. Counsel for the appli
cant argues that the text of that decision indicates that
the immigration officer who made it did not take into
account evidence which the applicant presented with
respect to relatives of the applicant who are in
Canada and are dependent upon him.
The applicant also seeks to reopen a leave to
appeal application which was decided by the Federal
Court of Appeal on October 18, 1991.
Counsel proposes to bring a motion pursuant to
Rule 1733 [Federal Court Rules, C.R.C., c. 663] to
reopen that application on the basis of new matter
which has come to light. Whether that Rule applies in
the present case, and whether such an application
should be made to the Court of Appeal or the Trial
Division are issues to be decided.
In any event, the grounds on which it is sought to
reopen the leave application are sufficiently serious
to justify the staying of the deportation order. The
applicant's claim for Convention refugee status was
dismissed by the Refugee Division of the Immigra
tion and Refugee Board on May 23, 1991. That deci
sion was taken by two Board members, Birku Menkir
and T. F. Beale.
The applicant is from Bulgaria. On April 25, 1991,
a sample format and alternative text suggestions for
oral and written reasons respecting negative decisions
for refugee claimants from Bulgaria was prepared for
use by Board members. That text was sent to the
Assistant Deputy Chairman of the Refugee Division.
It was prepared by two individuals. One of these was
Birku Menkir. The covering note which accompanied
that document explained:
You tasked us with writing suggested decision formats (nega-
tive) for Bulgarian claims. We have done so. It has been
reviewed by Legal Services. A copy is attached.
We await your next command.'
The footnote which was added to explain the last
sentence states:
Field Marshal the Earl Alexander of Tunis KG, to His Maj
esty, King George VI, Tunis, British Army Post Office, tele
gram, at p. 1. "I have thrown your Majesty's enemies from
North Africa. I await your next command."
Counsel argues that actual bias on the part of Birku
Menkir against Bulgarian refugee claimants clearly
existed when the decision on the applicant's refugee
claim was made. She argues that grounds for reopen
ing the Federal Court of Appeal's refusal of leave
exist. In the context of the present proceeding it is
sufficient to say that the applicant has demonstrated
that there is a serious question to be determined. This
justifies the issuing of a stay of the deportation order
against him.
The requirements for issuing stays of deportation
orders were set out in Toth v. Canada (Minister of
Employment & Immigration) (1988), 6 Imm. L.R.
(2d) 123 (F.C.A.). One must demonstrate that there is
a serious question to be determined, that the party
would suffer irreparable harm if the stay were not
granted and that as between the applicant and the
respondent the harm to the applicant would be greater
if a stay were not granted than to the respondent if
one is granted.
The applicant in the present case has easily demon
strated that the first requirement exists. The respon
dent's argument that the applicant will not suffer
great harm is that he is being deported to the United
States, not Bulgaria and that even if he were to be
returned to Bulgaria he would not suffer harm
because he would not be subjected to the treatment he
alleges will follow. The applicant argues that he has
no status in the United States or elsewhere and thus,
deportation to that country is merely a staging stop
on the way to Bulgaria. He argues that the respon
dent's position that he will not suffer harm in Bulga-
ria depends upon its rejection of his claim for refugee
status which he says was decided by a biased deci
sion maker.
I accept that the applicant has demonstrated the
likelihood of sufficient harm and that the balance of
convenience is in his favour. A stay of the deporta
tion order is therefore issued.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.