Date: 20021217
Docket: IMM-6260-02
Neutral citation: 2002 FCT 1310
Toronto, Ontario, Tuesday, the 17th day of December, 2002
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
ENRIK HAXHILLARI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is a motion by the Applicant, Enrik Haxhillari, for an order staying his
removal from Canada scheduled for December 17, 2002.
[2] The Applicant is a citizen of Albania who arrived in Canada on July 29, 2000 and
claimed Convention Refugee status upon his arrival.
[3] On February 25, 2002, the Applicant was declared not to be a Convention Refugee.
[4] The Applicant submitted a PDRCC application under the former Immigration Act.
[5] The Applicant later submitted a Post-Removal Risk Assessment (PRRA) under the new
Immigration Regulations.
[6] The Applicant met Lioudmila Petcherskaia in December 2001 and married her on April
14, 2002.
[7] The Applicant received a negative PRRA decision on December 2, 2002 and was told
that he would be deported on December 17, 2002.
[8] The Applicant and his wife completed an inland sponsorship application which was sent
to the Respondent on June 1, 2002.
[9] The Applicant and his wife's doctor stated that both, the Applicant and his wife, "exhibit
symptoms consistent with a diagnosis of post-traumatic stress disorder...".
[10] The Applicant asked for a deferral of his removal, but the officer told the Applicant he
could not defer as his only job was to give the papers.
[11] Issue : Should a stay be granted?
Analysis and Decision
[12] In order to grant a stay, I must be satisfied that:
1. The Applicant has raised a serious issue to be tried.
2. The Applicant will suffer irreparable harm if removed.
3. The balance of convenience favors the Applicant.
[13] The Applicant must meet all three conditions.
Serious Issue
[14] I am satisfied that the Applicant has raised a serious issue and that issue is whether the
officer has a discretion to defer a removal.
Irreparable Harm
[15] I am of the view, based on the medical report that the Applicant's medical condition
would suffer if he was removed from Canada. As well, I am satisfied from a perusal of the documentary evidence that persons in the Applicant's political position could be subject to persecution in Albania. These factors constitute irreparable harm.
Balance of convenience
[16] The balance of convenience favors the Applicant. He is not a threat to the public and the
Respondent will still be free to deport him at a later date if he is unsuccessful with his application.
[17] The motion for a stay is therefore allowed.
ORDER
The removal of the Applicant from Canada is stayed until the Applicant's application for leave for judicial review is denied or if leave is granted until the application for judicial review is disposed of by the Court.
"John A. O'Keefe"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of counsel and solicitors of record
DOCKET: IMM-6260-02
STYLE OF CAUSE: ENRIK HAXHILLARI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MONDAY, DECEMBER 16, 2002
REASONS FOR ORDER
AND ORDER BY: O'KEEFE J.
DATED: TUESDAY, DECEMBER 17, 2002
APPEARANCES BY: Ms. M. Christina F. Kurata
For the Applicant
Mr. John Loncar
For the Respondent
SOLICITORS OF RECORD: Ms. M. Christina F. Kurata
Barrister & Solicitor
206 Bloor St. West, Suite 7
Toronto, Ontario
M5S 1T8
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20021217
Docket: IMM-6260-02
BETWEEN:
ENRIK HAXHILLARI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND
ORDER