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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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