Malshi v. Canada (Citizenship and Immigration)

Malshi v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2007-02-20
Neutral citation
2007 FC 191
File numbers
IMM-84-07
Decision Content
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”
Judge
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:
Mr. Waikwa Wanyoike
FOR THE APPLICANT
Ms. Linda Chen
Ms. Modupe Oluyomi
FOR THE RESPONDENT
SOLICITORS OF RECORD:
MR. WAIKWA WANYOIKE
Barrister & Solicitor
Toronto, Ontario
FOR THE APPLICANT
MR. JOHN H. SIMS, Q.C.
Deputy Attorney General of Canada
Toronto, Ontario
FOR THE RESPONDENT