Husnain Inam v. Canada
(The Minister of Citizenship and Immigration)
Between Husnain Inam applicant and, The Minister of Citizenship and Immigration respondent
Max Berger, for the applicant.
David Knapp, for the respondent.
UPON MOTION, dated the 21st day of January 2009, on behalf of the applicant for an Order to stay his removal currently scheduled for February 17, 2009 to Pakistan;
AND UPON noting that the applicant is a citizen of Pakistan who moved to Canada in February 2006. His refugee claim and leave for judicial review were denied;
AND UPON noting that the applicant’s refugee claim was based upon being a gay man in Pakistan and persecution that he faced as a result of his sexual orientation;
AND UPON noting that the applicant submitted 4 affidavits as new evidence on his PRRA application. For various reasons the officer gave little or no weight to the affidavits;
AND UPON noting that the officer found a newspaper article and police report submitted by the applicant not to be reliable evidence;
AND UPON reading the filed material;
AND UPON considering the submissions of counsel for the parties;
AND UPON noting that in order to obtain a stay, the applicant must meet all three branches of the tri-partite test set out in Toth v. Canada ( Minster of Employment and Immigration) (1988), 86 N.R.302 (F.C.A.) at page 305:
This Court as well as other appellate courts have adopted the test for an interim injunction enunciated by the House of Lords in American Cyanamid Co. v. Ethicon Ltd.,  A.C…As stated by Kerans J.A. in the Black case
The tri partite test of Cyanamid requires, for the granting of such an order, that the applicant demonstrate, firstly, that he has raised a serious issue to be tried;
secondly, that he would suffer irreparable harm if no order was granted; and thirdly that the balance of convenience considering the total situation of both parties favours the order.
AND UPON being satisfied that the applicant has raised a serious issue to be tried, namely, was the officer’s treatment of the affidavits, police report and newspaper article proper?
AND UPON being satisfied that the applicant would suffer irreparable harm if the order is not granted, in that if the treatment of the above mentioned articles was not proper then there would be a serious risk to the applicant;
AND UPON noting that the balance of convenience favours the applicant;
THIS COURT ORDERS that the motion for a stay is allowed and the removal of the applicant is stayed until leave is denied in his application for judicial review and if leave is granted, then his removal is stayed until his application for judicial review is disposed of by the Court.
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