Malshi v. Canada (Citizenship and Immigration), 2007 FC 191

Date: 20070220

Docket: IMM-84-07

Citation: 2007 FC 191

Ottawa, Ontario, February 20, 2007

PRESENT:     The Honourable Mr. Justice Phelan

BETWEEN:

NDRE MALSHI

Applicant

and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1]               The Applicant brought a motion to stay his removal to Albania. The underlying Leave Application is in respect of a Pre-Removal Risk Assessment (PRRA).

[2]               The Applicant’s claim for protection was based on his belief that various threats he received were from those associated with a crime he had witnessed. That application was denied.

[3]               His PRRA application was based on new evidence of risk – recent threats aimed at him delivered to his brother. The Applicant also claimed that the state was unwilling or unable to provide protection to him.

[4]               The Applicant alleges that these are serious issues in the assessment of state protection including whether this is a situation which falls within the exception in Canada (Attorney General) v. Ward (C.A.), [1990] 2 F.C. 667 that a claimant need not seek state protection when it is not reasonably forthcoming. The Applicant alleges that the PRRA officer failed to consider whether state protection was effective.

[5]               Given the relatively low threshold for the “serious issue” of the tripartite test, the Applicant meets that threshold. The “serious issue” is also interrelated with the “irreparable harm” test.

[6]               The PRRA Officer held that evidence that Albania’s witness protection program was ineffective was irrelevant. This conclusion appears to be based on the fact that the Applicant was not in a witness protection program.

[7]               There was ample evidence before the Officer that Albania had significant problems with police corruption and organized crime. This evidence was found in both the U.S. DOS Reports and the Home Office (U.K.) Reports. While there was evidence of police responsiveness to complaints, the Officer appears to have missed the thrust of the Applicant’s argument that the Albanian police are unable to protect even those they put under protection – even less so for those who merely lodge a complaint about criminal activity.

[8]               If the Applicant is correct, then the PRRA Officer failed to assess the risk to the Applicant based on current information. Based upon the totality of the circumstances in this case, the Applicant has established sufficient evidence of irreparable harm  for this stage of the analysis.

[9]               The balance of convenience flows from the earlier findings and therefore favours the Applicant.

[10]           Therefore this motion will be granted and the removal stayed until the last of this Court’s decision on the Leave Application and the Application itself if leave is granted.

ORDER

            IT IS ORDERED THAT this motion will be granted and the removal stayed until the last of this Court’s decision on the Leave Application and the Application itself if leave is granted.

“Michael L. Phelan”

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          IMM-84-07

STYLE OF CAUSE:                          NDRE MALSHI

                                                            and

                                                            THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                    Toronto, Ontario

DATE OF HEARING:                      January 29, 2007

REASONS FOR ORDER

AND ORDER:                                   Phelan J.

DATED:                                             February 20, 2007

APPEARANCES:

SOLICITORS OF RECORD: