Federal Court Decisions

Date: 20020426

Docket: IMM-5747-00

Neutral citation: 2002 FCT 473

Ottawa, Ontario, this 26th day of April, 2002

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                                                OSARETIN OSAGIE

                                                                                                                                                       Applicant

                                                                                   

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 This is an application for judicial review of the decision of the operations manager, Regional War Crimes Unit, Greater Toronto Enforcement Centre, dated October 19, 2000, denying a request to defer the removal of the applicant pending the finalization of his application for permanent residence on humanitarian or compassionate grounds. The applicant is seeking an order to quash the operations manager's decision and to have the matter sent back for redetermination by another officer.

Background Facts

[2]                 The applicant is a citizen of Nigeria. He immediately claimed refugee status upon arriving at Pearson International Airport in Toronto on April 13, 1998.

[3]                 The applicant was refused refugee protection by virtue of Article 1F(a) of the United Nations Convention on Refugees because it was determined that he "committed a crime against peace, a war crime, or a crime against humanity". This conclusion arose from the applicant's membership in the Nigerian army. An application for judicial review of that decision was dismissed by this Court on July 13, 2000.

[4]                 On February 2, 2000, the applicant submitted an application for permanent residence on humanitarian and compassionate grounds pursuant to section 114(2) of the Immigration Act, R.S.C. 1985, c. I-2, as amended (the "H & C application").

[5]                 The H & C application reflected the fact that the applicant was living with his common law spouse and her son who was 19 years old in December, 2000. The couple were married on May 8, 2000. It also states that the applicant fears persecution if sent back to Nigeria.

[6]                 Correspondence between the applicant and the respondent suggests that the H & C application had been transferred from Vegreville to Woodbridge to the Greater Toronto Enforcement Centre ("GTEC") in Woodbridge.

[7]                 The respondent conducted interviews regarding the applicant's departure on September 6, 2000, September 25, 2000 and October 2, 2000. On October 2, 2000, the applicant was asked to purchase an airline ticket for travel to Nigeria during the week of November 6 to 10, 2000.

[8]                 On October 16, 2000 the applicant's representative wrote to the operations manager asking that the removal order be deferred. The letter states in part:

An application for permanent residence (H & C) was sent to CPC Vegreville on February 4, 2000. On May 8, 2000, Mr. Osagie was married to Angela Grant, a landed immigrant. So additional information regarding their marriage was sent to CPC Vegreville in May. However, in July, 2000, I was informed that his application was forwarded to Woodbridge CIC on February 17, 2000. He has never been contacted concerning his spousal application.

Mr. Osagie has an interview at your office with Mr. A. Santamaria on October 20, 2000 at 10:00 a.m. in order to arrange for Mr. Osagie's removal. As Mr. Santamaria does not have the authority to defer removal, I would like to request your intervention in this urgent matter to defer removal so as to give Mr. Osagie the opportunity of a spousal assessment. I also wrote a letter to the manager at CIC Woodbridge requesting the scheduling of such an interview.

[9]                 By letter dated October 19, 2000, the request was denied and it is that letter which forms the subject matter of this application for judicial review.

[10]            On November 13, 2000, the applicant received a direction to report for removal on November 27, 2000 at Pearson International Airport. On November 14, 2000, the applicant's counsel requested that a risk assessment be done before his planned removal. That request was acceded to by the respondent on November 15, 2000 and was completed on November 22, 2000. It concluded that there was insufficient credible information to believe that the applicant would be at risk if returned to Nigeria.

[11]            The applicant brought a motion before the Court on November 22, 2000 seeking an interim stay of the removal order pending the determination of this application. Mr. Justice Muldoon reserved his decision with respect to the motion but ordered that "the respondent take no action or measures whatever in regard to removing the applicant, until after the Court makes an order disposing of the within motion."

[12]            A supplementary order was issued by Muldoon J. on August 31, 2001. It states:

THIS COURT ORDERS that execution of the removal order made against the applicant herein, be and it is hereby stayed and held in abeyance until the respondent's officials and other staff or the appropriate tribunals have completed all considerations, determinations and decisions regarding the applicant and to which he is entitled by law and practice, or which have been ordered for his benefit including PCD review, H and C review and the like; and

THAT THE applicant shall not be removed from Canada by the respondent or her servants or employees if a judge of this Court declares that no law, rule or regulation forbids such removal.

[13]            The decision of the operations manager which is under review read in part as follows:

Our mandate is to remove persons from Canada who are complicit in war crimes and crimes against humanity. There are no unusual or exceptional circumstances that would necessitate the deferral of Mr. Osagie's removal.

[14]            In an affidavit sworn on January 16, 2001, the operations manager says that she considered the emotional and financial dependency between the applicant, his wife, and his stepson. She also says that it could be "some time" before the H & C application is processed. Finally, she asserts that she did not base her decision on information contained in the Field Operational Support System ("FOSS"), which the applicant asserts is incorrect, and that the respondent does not have a policy of deferring removals when there is an outstanding section 114(2) application.

Issues

[15]            The issues raised by the applicant can be summarized as follows:

1.          In the circumstances of this case, did the operations manager commit an error of law when she refused to defer execution of the removal order against the applicant?

2.          Is the operations manager's decision unreasonable because she misinterpreted the facts or breached a duty of fairness?

Analysis and Decision

[16]            At the commencement of the hearing, the applicant took the position that the application for judicial review was moot and it need not be determined. The decision under review is the decision of the operations manager not to defer the applicant's removal from Canada on November 27, 2000. As I understand the facts, the applicant is still in Canada.

[17]            Although counsel for both parties agree that the application is moot, they differ on the effect of the order of Justice Muldoon in this application which upon its face, would appear to grant a stay of removal until, among other things, the H & C application is dealt with. The applicant states that the order should remain as it is and not be varied. The respondent argues that the order could only be granted to defer the applicant's removal until this judicial review application is dealt with by the Court and it should be varied with respect to its temporal scope.

[18]            I agree that the application is moot. The order of Justice Muldoon was made in this very application. I have no jurisdiction as a trial judge to vary an order of another judge of the Trial Division, so the order of Muldoon J. is still on the record. With that order still on the record, it seems to me that any removal of the applicant is stayed until at least such time as the H & C application is dealt with.

[19]            The application for judicial review is therefore dismissed due to mootness.

ORDER

[20]            IT IS ORDERED that the application for judicial review is dismissed due to mootness.

                                                                                    "John A. O'Keefe"             

                                                                                                      J.F.C.C.                      

Ottawa, Ontario

April 26, 2002