Date: 20040405
Docket: IMM-886-04
Citation: 2004 FC 524
Ottawa, Ontario, this 5th day of April, 2004
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
FRANCIS ASUEKOMHE MARK
Applicant
- and -
THE SOLICITOR GENERAL FOR CANADA
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] The applicant is a citizen of Nigeria who arrived in Canada and made a Convention refugee claim in September 2000. The applicant's refugee claim was denied on December 20, 2001 and judicial review was not sought.
[2] On December 29, 2001, the applicant made a Post-Determination Refugee Claimants in Canada ("PRDCC") application, which was deemed to be a Pre-Removal Risk Assessment ("PRRA") application when the Immigration and Refugee Protection Act, S.C. 2001, c. 27 came into force on June 28, 2002.
[3] On April 10, 2002, the applicant applied for landing on humanitarian and compassionate ("H & C") grounds. This application has not been determined to date.
[4] On January 18, 2003, the applicant received a negative decision on his PRRA application.
[5] In April 2003, the applicant was scheduled for removal to Nigeria but failed to appear as directed. A warrant was issued for his arrest.
[6] On June 25, 2003, the applicant's challenge to his negative PRRA decision by leave to the Federal Court of Canada was denied.
[7] After a routine traffic stop in December 2003, the applicant was arrested and detained pending removal. He was released from detention on December 24, 2003 after posting a bond.
[8] The applicant failed to appear before immigration authorities on January 23, 2004 to receive his removal arrangements. He appeared on January 24, 2004, was arrested and informed that his removal was scheduled for January 28, 2004.
[9] On January 27, 2004 the applicant requested that his removal be deferred on the basis that he is the primary caregiver of a Canadian born child and is married to a Convention refugee who is afflicted by psychological illness that prevents her from adequately caring for their child.
[10] On January 27, 2004, an Immigration Enforcement Officer refused the applicant's request
to defer his removal.
[11] Also on January 27, 2004, the applicant's removal was stayed for a period of seven days by O'Reilly J. to permit time for the filing of proper materials for a motion to stay removal.
[12] On February 2, 2004 the applicant filed an application for leave to seek judicial review of the Immigration Enforcement Officer's refusal to defer removal.
[13] On February 3, 2004, the applicant filed this motion to stay the execution of his removal order, pending the outcome of his underlying judicial review application. The respondent undertook to not deport the applicant pending this Court's determination of the stay motion.
Issue
[14] Should an order issue staying the removal of the applicant?
Analysis and Decision
[15] It is now accepted that a removal officer has some discretion and may, in certain circumstances, stay the removal of an Applicant (see Wang v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 295 (QL), 2001 FCT 148).
[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 [Footnote 3 appended to judgment]. 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 favors the order.
The applicant must meet all three branches of the tri-partite test.
[17] Serious Issue
I am satisfied that the applicant has raised a serious issue to be tried, namely, whether the removal officer considered the psychological report submitted by the applicant in support of his deferral request.
[18] Irreparable Harm
I find that the applicant's Canadian born child could suffer irreparable harm if an order is not granted and the applicant is removed from Canada as the child's mother could not, due to her health condition, which the medical evidence indicates would deteriorate if her husband was removed, properly care for the child. This would amount to irreparable harm for the applicant and his family.
[19] Balance of Convenience
. I am of the opinion that the balance of convenience favours the applicant. Although the applicant did not report for removal in the past, most recently on January 23, 2004, he did report to the authorities on January 24, 2004 at which time he was detained He is not a threat to the public and the respondent can remove the applicant if his H & C application is not successful.
[20] The applicant's motion for a stay of his removal order until his application for leave and for judicial review are determined by the Court is granted.
[21] I do not propose to rule on the admissibility of the applicant's affidavit sworn to on February 10, 2004 as I did not make any use of the affidavit for the purposes of this motion.
ORDER
[22] IT IS ORDERED that the removal order issued against the applicant will be stayed until his application for leave for judicial review is denied or if leave is granted, then the removal order is stayed until the judicial review application is dealt with by the Court.
"John A. O'Keefe"
J.F.C.
Ottawa, Ontario
April 5, 2004
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-886-04
STYLE OF CAUSE: FRANCIS ASUEKOMHE MARK
- and -
THE SOLICITOR GENERAL OF CANADA
PLACE OF HEARING: By Way of Telephone Conference Between
Ottawa and Toronto
DATE OF HEARING: February 11, 2004
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
APPEARANCES:
Mr. Kingsley Jesuorobo
FOR APPLICANT
Ms. Sally Thomas
FOR RESPONDENT
SOLICITORS OF RECORD:
Kingsley I. Jesuorobo
North York, Ontario
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT