Ivakhnenko v. Canada (Minister of Citizenship and Immigration), 2003 FCT 517

Date: 20030425

Docket: IMM-2823-03

Citation: 2003 FCT 517

Ottawa, Ontario this 25^th day of April, 2003

Present:           THE HONOURABLE MR. JUSTICE O'REILLY                          

BETWEEN:

                                       DMITRI ALEKSANDROVIC IVAKHNENKO

                                                                                                                                                       Applicant

                                                                             - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 Mr. Ivakhnenko is seeking a stay of an order requiring his removal from Canada on April 27, 2003. I am satisfied that he has met the three-part test for a stay set out in Toth v. Canada (Minister of Employment and Immigration), [1988] F.C.J. No. 587.

[2]                 First, Mr. Ivakhnenko has raised a serious issue in respect of the foundation for the conclusions of the Pre-Removal Risk Assessment Officer. However, I see no basis for the allegation of bad faith on the part of the Officer.

[3]                 Second, as in the cases of Suresh v. Canada (Minister of Citizenship and Immigration), [1999] 4 F.C. 206 and Melo v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. 403 (T.D.), Mr. Ivakhnenko's opportunity to benefit from judicial review of the Officer's decision would evaporate entirely if he were removed now. His submission is that his personal risk in being returned to and imprisoned in Russia has not been adequately considered. Yet, his removal would cause him to face that risk (assuming for present purposes that the risk actually exists) immediately. The inability to have this legal issue considered while he is still in a position to benefit from its potential resolution in his favour constitutes irreparable harm.

[4]                 Third, in light of the foregoing, the balance of convenience lies in having the legal issue raised by Mr. Ivakhnenko considered by this Court by way of his application for leave to apply for judicial review.

                                                                            ORDER

THIS COURT ORDERS that the execution of the removal order against Dmitri Aleksandrovic Ivakhnenko is stayed until the final disposition of his application for leave and judicial review.

                                                                                                                                     "James W. O'Reilly"                

                                                                                                                                                          J.F.C.C.