Date: 20050124
Docket: IMM-290-05
Citation: 2005 FC 113
Vancouver, British Columbia, Monday, the 24th day of January, 2005
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
WAHIDULLAH YUSUFZAI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
BETWEEN:
Docket: IMM-334-05
WAHIDULLAH YUSUFZAI
Applicant
- and -
THE SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] UPON motion on behalf of the Applicant for a stay of his removal order scheduled for January 25, 2005;
[2] AND UPON considering the affidavits and written submissions filed by the Applicant's and the Respondent's counsel;
[3] AND UPON hearing the oral submissions of the Applicant's and the Respondent's counsel;
[4] BY CONSENT, the style of cause in IMM-334-05 has been changed to name the Solicitor General of Canada as Respondent;
[5] AND UPON considering the tripartite test in Toth v. Canada (Minister of Employment and Immigration) (1998), 86 N.R. 302 (F.C.A.);
[6] The Applicant was born in Afghanistan. He is seeking a stay of the removal proceedings against him until his pending application for judicial review and his failed humanitarian and compassionate (H & C) applications are determined.
Serious Issue
[7] I am satisfied that the Applicant has raised a serious issue to be tried, being the Minister's delay in the release of the Applicant's H & C decision for approximately ten weeks, releasing the decision only 11 days before the scheduled removal date and detaining the Applicant. Also of concern is the challenge by the Applicant that sections 112 and 115 of the Immigration and Refugee Protection Act ("IRPA") as well as section 230(3)(c) of the Immigration and Refugee Protection Rules ("IRPR") combined deny the Applicant a right to a risk assessment prior to being removed to his country.
Irreparable Harm
[8] The Applicant alleges that he will suffer the risk of being re-traumatized by post-traumatic stress disorder ("PTSD") [see Dr. Ley's report of October 22, 2001] if he is returned to his country. It will also be difficult for him to obtain the necessary medical treatment for his hepatitis "C" condition. He also invokes that Afghanistan is still in a warlike situation. He has been in Canada for the last 15 years. Even though his criminal record is serious, his behaviour has been exemplary since his release from prison in 2000. He now has a wife and has done nothing inappropriate since he completed his criminal incarceration and does not pose a present or future danger to Canadian society as found by the Detention Review Officer in January 2005. I am not bound by that decision, but I am satisfied that the Applicant has met the second prong of the Toth test.
Balance of Convenience
[9] In the case at bar, the balance of convenience is in favour of the Applicant.
ORDER
THIS COURT ORDERS that the Applicant's removal order is stayed until the application for leave and judicial review of his H & C application is considered by the Federal Court and, if leave is granted, until the Applicant's H & C application is determined.
(Sgd.) "Michel Beaudry"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-290-05
STYLE OF CAUSE: WAHIDULLAH YUSUFZAI v. THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
DOCKET: IMM-334-05
STYLE OF CAUSE: WAHIDULLAH YUSUFZAI v. THE SOLICITOR GENERAL OF CANADA
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: January 24, 2005
REASONS FOR ORDER AND ORDER: BEAUDRY J.
DATED: January 24, 2005
APPEARANCES:
Mr. Zool Suleman FOR APPLICANT
Mr. Peter Bell FOR RESPONDENT
SOLICITORS OF RECORD:
Suleman & Company FOR APPLICANT
Vancouver, BC
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Email this Content