Date: 20031024
Docket: IMM-8248-03
Citation: 2003 FC 1245
OTTAWA, Ontario, this 24th day of October, 2003
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
SAFWAN ANTABLIOGHLI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is a motion for an order staying the execution of the removal of the applicant.
[2] The applicant is a medical doctor from Syria. He is also a Fulbright Scholar, and has obtained two postgraduate degrees in the United States related to medical science. The applicant has been living in Canada since 1998 and is married to a Canadian. The applicant's Canadian wife is expecting their first child and is financially dependent upon the applicant. The applicant is employed in the position of Supervisor, Community Support Workers, Canadian Red Cross, Region of Peel in a permanent full time position with a salary of $38,000 per annum.
[3] In January 2002 the applicant made an application for permanent residence in Canada at the Canadian Consulate General in Buffalo. The respondent knew at that time that the applicant was living in Canada. On August 13, 2003 the respondent informed the applicant that he must provide medical information, which the applicant has already done. The applicant's Member of Parliament made inquiries of the respondent and was informed that the respondent had received all of the necessary information and that the application for permanent residence was proceeding properly, but that it will take a considerable amount of time due to the respondent's administrative backlog.
[4] Based on the information before the Court, I am satisfied that the applicant has probably been "paper screened" and been awarded more than enough units of assessment to qualify for permanent residence in Canada. But for the respondent's administrative delays, the applicant probably would have already been granted an immigrant visa.
[5] The enforcement officer was aware of the applicant's "skilled worker application", but the enforcement officer says "at no time, did the applicant ask me to defer his removal due to an outstanding skilled worker application". In Simoes v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 936 Nadon J. (as he then was) held that a pending H & C application that was brought on a timely basis but has yet to be resolved due to backlogs in the system is a factor which a removal officer may consider in deciding when it is "reasonably practicable for a removal order to be executed." In the case at bar, the same rationale applies to a pending application for permanent residence which has been outstanding for 21 months, and which involves a highly skilled applicant who probably has already been positively assessed.
[6] While the removal officer has a limited discretion as to when a removal order will be executed, the relevant factor in this case was obvious, pertinent and compelling, and it only made common sense for the removal officer to check with his own department. It is beyond reason to deport a positively assessed applicant for permanent residence, which application has been pending for 21 months due to the administrative backlog in the respondent's system. In this case, the enforcement officer made no inquiry of his own department. This makes no sense in the circumstances of this case, and constitutes a serious issue for the purpose of this motion.
[7] With respect to irreparable harm, the applicant, a Kurd, has provided evidence of concern for his safety because he made a refugee application in Canada. As well, the applicant's wife is expecting their first child, and would suffer irreparable harm without her husband and provider. I accept this evidence for the purpose of this motion.
[8] For these reasons, I am satisfied that this application for a stay ought to be granted until the application for permanent residence is processed by the respondent.
ORDER
THIS COURT ORDERS THAT:
This motion for a stay of the removal order is allowed until the applicant's application for permanent residence is processed by the respondent.
"Michael A. Kelen" _______________________________
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8248-03
STYLE OF CAUSE: SAFWAN ANTABLIOGHLI v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: October 23, 2003
REASONS FOR Order
and Order : THE HONOURABLE MR. JUSTICE KELEN
DATED: October 24, 2003
APPEARANCES:
Mr. Yehuda Levinson FOR APPLICANT
Ms. Ann Margaret Oberst FOR RESPONDENT
SOLICITORS OF RECORD:
Levinson & Associates
Barrister & Solicitor
Toronto, ON FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, ON FOR RESPONDENT
FEDERAL COURT
Date: 20031024
Docket: IMM-8248-03
BETWEEN:
SAFWAN ANTABLIOGHLI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
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