Date: 19980813
Docket: IMM-4044-98
BETWEEN:
OMOKARO UKPONMWAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
EVANS, J.
A. Introduction
[1] On August 10, 1998, the applicant, Mr. Omokaro Ukponmwan, a citizen of Nigeria, applied under s. 82.1 of the Immigration Act for leave to apply under s. 18.1 of the Federal Court Act for judicial review of a decision made and communicated to the applicant on July 30, 1998 by Mr. Peter Loewry, a Canada Immigration enforcement officer, directing the applicant to report for removal from Canada to Nigeria on August 13, 1998. This decision gave effect to a deportation order dated January 29, 1996 that became executory when Mr. Ukponmwan's claim to be recognized as a refugee was denied by the Convention Refugee Determination Division of the Immigration and Refugee Board on July 29, 1997; leave to apply for judicial review of the Board's decision was refused on November 27, 1997.
[2] This motion, heard on an urgent basis on August 12, 1998 by telephone conference, is brought by the applicant to stay his removal, on the ground, inter alia, that he is likely to be subject to detention and torture by the Nigerian authorities on his return, both because he is an Ogoni and a member of a resistance group, the Movement of Survival of the Ogoni People, and as a person who has unsuccessfully made a refugee claim abroad, which, he alleges, is regarded by the Nigerian authorities as a public denigration of Nigeria's reputation.
B. Jurisdiction of the Court to grant a stay
[3] Two jurisdictional issues arise from this motion. The first is the extent of the jurisdiction of this Court to stay the removal of a person against whom a deportation order has been made when the validity of the order itself is not in question. The second is the jurisdiction of the Court to review decisions made respecting the execution of deportation orders.
[4] At least since the enactment in 1992 of s. 18.2 of the Federal Court Act, it has been well established that this Court has jurisdiction to order the stay of execution of a deportation order pending the determination of an application for judicial review challenging the validity of the order, whether or not leave to apply has yet been granted: Hosein v. Canada (Minister of Employment and Immigration (1992), 17 Imm. LR. (2d) 125 (F.C.T.D.). More problematic is whether the Court also has jurisdiction when the application for judicial review does not impugn the order itself, but only its execution.
[5] On this latter question there is authority both for and against, much of which is summarized in Llewellyn v. Canada (Minister of Employment and Immigration) (1994), 24 Imm. L.R. (2d) 154 (F.C.T.D.). For example, it has been held that the Court has no jurisdiction to stay a removal pending the disposition of an application under s. 114(2) of the Immigration Act for the applicant to be permitted to remain in Canada on humanitarian and compassionate grounds: Shchelkanov v. Canada (Minister of Employment and Immigration) (1994), 76 F.T.R. 151 (F.C.T.D.); Paul v. Canada (Minister of Employment and Immigration) (1993), 76 F.T.R. 11 (F.C.T.D.). On the other hand, stays have been ordered when necessary to sustain the jurisdiction of the Court over an application for judicial review alleging the unlawfulness of the removal without impugning the validity of the deportation order itself: see, for example, Petit v. Canada (Minister of Employment and Immigration), [1993] 2 FC 505 (F.C.T.D.); Llewellyn (supra), Samakhvalov v. Canada (Minister of Ctizienship and Immigration) (1994), 76 F.T.R. 56 (F.C.T.D.).
[6] Although it is not clearly spelled out in the applicant's hurriedly drafted application for leave and for judicial review, the applicant's essential point would seem to be that it is unlawful for the respondent to remove the applicant from Canada in circumstances where on his return he is likely to be detained without trial and subject to torture by the Nigerian authorities. Presumably, the argument will be made that the respondent will thereby impose cruel and unusual punishment on the applicant contrary to s. 12 of the Canadian Charter of Rights and Freedoms, or deprive the applicant of his rights under s. 7. Since it would undermine the jurisdiction of the Court over this application if the applicant were removed to Nigeria prior to its disposition, I would hold that the Court has jurisdiction to stay the removal until the application has been determined: compare Nguyen v. Canada (Minister of Employment and Immigration), [1993] 1 F.C. 696, 708-9 (F.C.A.).
[7] The second jurisdictional issue raised by Mr. Friday, counsel for the respondent, concerns the amenability to judicial review of the decision made by the enforcement officer directing the applicant to report for removal, when the validity of the deportation order itself is not being impugned. I can well understand that this Court should be reluctant to subject to close scrutiny for legal error the arrangements made to execute a removal order "as soon as reasonably practicable" as required by s. 48 of the Immigration Act. However, as the applicant's counsel, Mr. Yallen, asked rhetorically in argument: if the applicant cannot challenge the validity of his removal to Nigeria at this stage, how else can he protect his legal right not to be exposed by Canada Immigration to torture and unlawful detention at the hands of the Nigerian authorities? It is a cardinal principle of our law that persons should not be denied an effective remedy to vindicate their legal rights, especially, of course, those guaranteed by the Constitution. Accordingly, I find that the Court has jurisdiction to review the validity of the directions for the applicant's removal to Nigeria and to order its stay, where, as here, the applicant alleges that he is likely to be tortured or detained by the Nigerian authorities on his return.
C. The exercise of jurisdiction
[8] The Court's jurisdiction to stay a deportation pending the disposition of an application for judicial review is, of course, discretionary. In exercising its jurisdiction the Court is guided by the three-pronged test established in Toth v. Canada (Minister of Employment and Immigration), [1989] 1 F.C. 536 (F.C.A.).
[9] The first part of the test requires the applicant for the stay to satisfy the Court that there is a serious issue or a fairly arguable case to be determined on the application for judicial review that is before the Court. I shall assume for the purpose of this motion that it is a serious legal issue whether the removal from Canada of a person, who has not been found to be a refugee, to a country where he is likely to be subjected to torture or prolonged detention without trial, is contrary to ss. 7 or 12 of the Charter. More difficult for the applicant, however, is whether he has produced enough evidence to satisfy me on the balance of probabilities that he is likely to experience these misfortunes if he is removed to Nigeria in accordance with Mr. Lowery's directions.
[10] In his affidavit and the materials attached to it, and in the oral submissions of his counsel, the applicant evidences the human rights abuses committed in recent years by members of the Nigerian army and police against political dissidents, particularly Ogoni people and those associated with MOSOP. The applicant also evidences the continuing volatility of the human rights situation in Nigeria following the recent deaths of General Abacha and Chief Abiola, despite the announced intentions of the present government, led by General Abubakar, to restore civilian rule in Nigeria. In addition, the applicant provided evidence from one source that failed refugee claimants are likely be tortured on their return. Moreover, since the applicant's passport has been lost, he will be sent from Canada on a "Canadian single purpose travel document", the effect of which will be to deliver him into the hands of the Nigerian immigration authorities, thus increasing the likelihood that he will be tortured or imprisoned.
[11] In reply, the respondent relied heavily on the fact that the applicant was found not credible by the Board when rejecting his claim for refugee status. In its reasons for decision, the Board rejected the applicant's claim that he was an Ogoni and had been an activist with MOSOP. As regards current conditions in Nigeria, Mr. Friday relied on statements attributed last month to a Nigerian general, recently released from prison for his opposition to the previous regime, that expressed cautious optimism about the outlook for human rights in view of General Abubakar's apparent commitment to the return of civilian government.
[12] Despite the commendable efforts of Mr. Yallen, I am not satisfied that the application for judicial review raises a serious question or a fairly arguable case. Accordingly, I decline to exercise my discretion to stay the applicant's removal on August 13, 1998. The Board's dismissal of the applicant's refugee claim on grounds of credibility makes it very difficult for him to maintain that he is likely to be subject to torture as an Ogoni or as a MOSOP activitist. Moreover, while there are no doubt uncertainties about the future, the human rights situation in Nigeria seems to be improving under General Abubakar, thus reducing the likelihood that the applicant would be detained indefinitely or tortured, simply because he could be identified by immigration authorities in Nigeria as a failed refugee claimant in Canada.
[13] Indeed, the argument of counsel for the applicant came close to asserting that any Nigerian who makes a refugee claim in Canada, no matter how groundless, cannot as a matter of law be removed to Nigeria, at least in the absence of a passport. This cannot be correct. Whether conditions in Nigeria are currently such that failed refugee claimants should be permitted to remain in Canada on humanitarian and compassionate grounds is, of course, a matter within the discretion of the Minister of Citizenship and Immigration, not of this Court.
[14] In view of these findings, it is unnecessary for me to consider the other elements of the Toth test, namely whether the removal would cause irreparable harm to the applicant, and where the balance of convenience lies. I only note that the basis on which I have found that there is no serious issue to be tried also negates the applicant's claim that he would suffer irreparable harm if returned to Nigeria.
[15] Accordingly, the applicant's motion for a stay is dismissed.
| John M. Evans |
| ________________________ |
| Judge |
OTTAWA
August 13, 1998