2018 FC, 2018 FC 1286

Date: 20181219 Docket: IMM-5641-18 Citation: 2018 FC 1286 Toronto, Ontario, December 19, 2018 PRESENT: The Honourable Madam Justice McDonald BETWEEN:ROBERT CUTAJApplicantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATION AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCYPREPAREDNESSRespondent ORDER AND REASONS [1] By motion heard on December 18, 2018, Mr.

Cutaj seeks an order staying his removal to Albania scheduled for January 2, 2019,pending the determination of his application for leave and judicial review of the decision of a Pre-removal Risk Assessment [PRRA]Officer. [2] The Applicant’s PRRA was refused on October 18, 2018 with the PRRA Officer concluding he would not be at risk on return toAlbania. [3] The Applicant argues that he should be granted a stay until the underlying decision on his application for leave and judicial review ofhis PRRA refusal has been finalized.

The Applicant’s leave application was filed on November 16, 2018. [4] The Applicant’s refugee claim was refused by the Refugee Protection Division [RPD] and his appeal to the Refugee Appeal Division[RAD] was dismissed in October 2016. The Applicant claims he is at risk of persecution or harm in Albania because he is homosexual/bisexual, and because of a property dispute and a blood feud.

The RPD and the RAD both rejected the Applicant’s claim on the basis thathe was not credible. [5] On a motion for a stay of removal from Canada, the Applicant must satisfy the tripartite test outlined by the Federal Court of Appealin Toth v Canada (Minister of Employment and Immigration), (FCA), [1988] 86 NR 302 (FCA) at 305, summarizedas follows: 1. The Applicant has raised a serious issue to be tried; 2. That he would suffer irreparable harm if the stay is not granted; and 3.

That the balance of convenience favours granting the stay. [6] The Toth test is conjunctive, meaning that the Applicant must satisfy all three elements of the test in order to be entitled to relief(Janssen Inc v AbbVie Corp, 2014 FCA 112 at para 14). I. Serious Issue [7] In support of his motion, the Applicant attempted to introduce evidence through his Affidavit which was not before the PRRAOfficer.

The Respondent correctly objected to this evidence, and for the purpose of this Motion this evidence was not taken intoconsideration. [8] The Applicant argues that there are a number of serious issues with the PRRA decision. [9] First, he argues that the PRRA Officer erred in making credibility findings without regard to the evidence before him. A review ofthe decision shows that the PRRA Officer considered all of the evidence submitted by the Applicant.

However, the Applicant’s claimwas found to be lacking credibility and the evidence submitted did not remedy his lack of credibility. [10] The Applicant also argues that the PRRA Officer’s analysis of country conditions was unreasonable. The Officer noted afterconsidering country condition evidence that blood feuds are a rare occurrence and are gradually decreasing.

This was a reasonablefinding considering the absence of any evidence to connect the Applicant’s blood feud claim to the country condition evidence. [11] Further, the Applicant argues that the PRRA Officer’s analysis of available state protection was unreasonable.

He argues that theOfficer should have considered what kind of state protection was actually provided to the Applicant (see Gonzalez Torres v Canada(Citizenship and Immigration), 2010 FC 234 at para 37). [12] The Officer considered state protection and acknowledged that the Albanian government has taken serious steps to respond to theissue of blood feuds, such as by criminalizing blood feud killings and conflict, developing and launching a police database to curtail suchviolence, and establishing a governmental committee to address the issue.

[ 13 ] Overall, the Applicant’s arguments do not acknowledge that the evidence he seeks to rely upon does not remedy his underlying credibility problem. Fundamentally, the Applicant’s claim of risk of persecution or possibility of harm that he presented to the RPD, the RAD, and to the PRRA Officer was not found to be credible. Therefore, it was within the PRRA Officer’s discretion to decide that state protection was adequate for the Applicant given the credibility concerns surrounding his claim. [ 14 ] Accordingly, the Applicant has failed to establish a serious issue. II.

Irreparable harm [ 15 ] On the second prong of the Toth test, the Applicant must establish with clear and non-speculative evidence that he will suffer irreparable harm in the event that he is removed from Canada. [ 16 ] The Applicant argues that he faces physical harm and possibly death on return to Albania because of the blood feud. He claims that his divorce resulted in an altercation between the families causing his uncle to die of a heart attack. [ 17 ] However, again this evidence is marred by the overall credibility issues with the Applicant’s claim.

The PRRA Officer concluded that the documents relied upon by the Applicant did not establish the facts that the Applicant was tendering them to prove. For example, while the medical evidence shows the uncle died of a heart attack, it does not show that the heart attack was the result of an altercation arising from a blood feud as alleged. [ 18 ] In this respect, the facts and evidence that the Applicant relied upon on his PRRA application were not materially different from the facts and evidence that were found not credible by the RPD and RAD.

Therefore, the PRRA Officer was correct to reject this evidence ( Raza v Canada (Citizenship and Immigration) , 2007 FCA 385 at para 17 ). [ 19 ] The Applicant has not established irreparable harm. III. Balance of Convenience [ 20 ] In the circumstances, as the Applicant has not established the first two prongs of the tripartite test, the balance of convenience cannot favour the granting of the stay. [ 21 ]

Section 48 of the Immigration and Refugee Protection Act , SC 2001, c 27 provides that under a removal order a foreign national must leave Canada immediately, and that the order must be enforced as soon as possible. Therefore, the balance of convenience favours the Minister. IV.

Conclusion [ 22 ] The issuance of a stay is an extraordinary remedy and the Applicant has not met the necessary test to be granted a stay of removal. [ 23 ] At the request of the Respondent, the style of cause is amended to add the Minister of Public Safety and Emergency Preparedness as a Respondent. [ 24 ] The Applicant’s motion is dismissed. ORDER in IMM-5641-18 THIS COURT ORDERS that : 1 . The style of cause is hereby amended to add the Minister of Public Safety and Emergency Preparedness as a Respondent; and 2 . The motion is dismissed.

"Ann Marie McDonald" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-5641-18

STYLE OF CAUSE: ROBERT CUTAJ v THE MINISTER OF CITIZENSHIP AND IMMIGRATION ET AL PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: December 18, 2018 REASONS FOR REASONS: MCDONALD J. DATED: December 19, 2018 APPEARANCES : Aida Kalaj For The Applicant Amina Riaz For The Respondent SOLICITORS OF RECORD : Brunga Law Professional Corporation Barrister and Solicitor Toronto, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent