Date: 20031128
Docket: IMM-4244-03
Citation: 2003 FC 1402
Ottawa, Ontario, this 28th day of November, 2003
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
ADEMOLA ADEBAYO OLADAPO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
O'KEEFE J.
[1] This is a motion by Ademola Adebayo Oladapo (the "applicant") for an order staying his deportation pending completion of his application for leave and for judicial review. The decision under review is the refusal by the enforcement officer to avail the applicant of an opportunity to voluntarily comply with a removal order from Canada pursuant to section 238 of the Immigration and Refugee Protection Regulations, S.O.R./2002-227.
[2] The applicant is a citizen of Nigeria who arrived in Canada on October 31, 1999. Thereafter, he made a claim for refugee protection.
[3] In December 2001, the applicant married Yetunde Famoriyo who is a Canadian citizen. The applicant's wife then sponsored his application for permanent residence from within Canada (spouse in Canada) on humanitarian and compassionate ("H & C") grounds. The application was submitted in January 2002.
[4] The applicant then withdrew his refugee claim in February 2002, but he states that he remains fearful of persecution in Nigeria.
[5] On March 28, 2003, the applicant was notified to attend an interview on April 2, 2003 concerning removal arrangements. At that meeting, the applicant requested a deferral of his removal which was deferred until his pre-removal risk assessment ("PRRA") was dealt with.
[6] The applicant was provided with a PRAA application which he completed and submitted.
[7] On May 27, 2003, the applicant received by fax, a negative decision on his H & C application. On June 3, 2003, he received a copy of the negative decision by mail. The faxed copy stated that he had 15 days to comment on the report while the mailed copy stated he had 22 days to comment.
[8] The applicant states in his affidavit that the officer had indicated on May 28, 2003 that he would have three months after any negative PRRA decision to leave Canada. On June 4, 2003, the officer telephoned the applicant's counsel and indicated that he had not agreed to the three month period. In an effort to clear up the misunderstanding, the applicant and his counsel attended at the officer's place of work, but neither the officer nor his supervisor saw the applicant and his counsel.
[9] The applicant and his counsel's law student attended at a pre-removal meeting on June 9, 2003. The law student, in her affidavit, states that the applicant was told of his negative PRRA decision, but he was not given a copy of the decision.
[10] The applicant was arrested and detained at the conclusion of the meeting and was scheduled for removal on June 11, 2003, the respondent having purchased a seat on an airplane that both Canada and the United States were using to remove persons to Nigeria.
[11] The applicant's counsel, Mr. Jesuorobo, requested a copy of the negative PRRA decision, but was not given a copy. The officer, in response to the request stated that Ms. Dadepo, the law student, held on to copies of the negative PRRA decision at the end of the meeting. The law student deposed in her affidavit that she did not receive copies of the negative PRAA decision at the meeting.
[12] As of the date of the hearing, the applicant's counsel stated that a copy of the negative PRRA decision had not been received.
[13] The applicant's wife was a final year student at the University of Windsor.
[14] The applicant is employed as a legal assistant at his counsel's law office.
[15] Issue
Should an order issue staying the removal of the applicant?
Analysis and Decision
[16] In order to obtain a stay, the applicant must satisfy the requirements set out in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.) at page 305:
This Court, as well as other appellate courts have adopted the test for an interim injunction enunciated by the House of Lords in American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396. As stated by Kerans J.A. in the Black case supra:
The tri-partite test of Cyanamid requires, for the granting of such an order, that the applicant demonstrate, firstly, that he has raised a serious issue to be tried; secondly, that he would suffer irreparable harm if no order was granted; and thirdly that the balance of convenience considering the total situation of both parties favours the order.
The applicant must meet all three branches of the tri-partite test set out in Toth, supra, for a stay to be granted.
[17] Serious Issue
The serious issue to be tried in this case is whether or not the officer refused to consider a request pursuant to section 238 of the Immigration and Refugee Protection Regulations, supra.
[18] Irreparable Harm
The applicant would suffer irreparable harm if he was brutalized by the groups who recently brutalized his family members. In addition, the Ogboni cult members have threatened him with mortal harm. I am of the view that the applicant would suffer irreparable harm if returned to Nigeria.
[19] Balance of Convenience
The balance of convenience favours the applicant. He is employed, and is not a threat to the public. The respondent can still carry out the removal at a later date if the applicant is unsuccessful with his application for leave and judicial review.
[20] The deportation of the applicant is stayed until leave is denied in his application for
judicial review or if leave is granted, then until the application for judicial review is determined by the Court.
"John A. O'Keefe"
J.F.C.
Ottawa, Ontario
November 28, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4244-03
STYLE OF CAUSE: ADEMOLA ADEBAYO OLADAPO
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Tuesday, June 10, 2003
REASONS FOR ORDER OF O'KEEFE J.
DATED: Friday, November 28, 2003
APPEARANCES:
Kingsley Jesuorobo
FOR APPLICANT
Greg George
FOR RESPONDENT
SOLICITORS OF RECORD:
Kingsley Jesuorobo
Toronto, Ontario
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT