Date: 20030721
Docket: IMM-4356-03
Citation: 2003 FC 905
BETWEEN:
EDWARD MBOYA OKOJIE
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] These are reasons for a stay, ordered on July 4, 2003, of the execution of a removal order which was to have been effective by notice of removal arrangements dated June 19, 2003, whereby the Applicant, then in detention, was advised that his removal from Canada would be effected on July 7, 2003.
[2] The stay application, originally filed on June 11, 2003, with respect to the Applicant's earlier scheduled departure on June 11, was adjourned sine die that day, apparently when it was known that the Applicant was unable to travel because of illness. A second notice of removal was later given for removal on July 7, and the application for a stay was then returned on short notice and heard on July 3. For purposes of this application the Court treats the two notices of removal as a continuing process, effectively one decision to arrange removal of the Applicant as soon as reasonably practicable.
[3] Underlying the application for a stay when the matter was heard, were two applications for leave and judicial review. The first concerned a decision by a removals officer, made June 9 and communicated to the Applicant's solicitor in writing that day, in response to counsel's earlier request in writing that removal be deferred in the special circumstances of the case. That decision was to refuse the request for a deferral.
[4] The second application for leave and for judicial review concerns a pre-removal risk assessment ("PRRA") decision, dated May 30, 2003, but not communicated to the Applicant until he appeared as requested on June 9 and was then taken into detention. The PRRA decision in question found the Applicant was not subject to danger of torture or to a risk to his life or of cruel and unusual punishment or of persecution, as set out by sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, ("IRPA").
[5] I note for the record that the Applicant has had an outstanding application for landing from within Canada on humanitarian and compassionate grounds, sponsored by his wife, since March 2002. No decision had been made in respect of that application up to the time the application for a stay was considered on July 3, 2003.
[6] The test for a stay is well established (see Toth v. Canada (Minister of Employment and Immigration), (1998), 6 Imm. L.R. (2d) 123, 86 N.R. 302 (F.C.A.)). It was argued for the Respondent that the original underlying application for leave and for judicial review, concerning the refusal on July 9 to defer removal, was moot when this matter was heard since the application concerned the decision not to remove the Applicant on June 11. As I have noted, however, I consider the process for removal to have been a continuing one in the circumstances of this case, and the issue raised by the underlying application concerns the fairness of the process and, in particular, whether and if so what measure of attention was paid to humanitarian circumstances raised by counsel for the Applicant when requesting deferral. In my opinion those issues are sufficiently serious, for the responsibilities of the removal officer are here questioned, that the first requirement for a stay, that is that there be a serious issue before the Court, is met.
[7] The second requirement for a stay concerns the establishment of irreparable harm. While it is urged that family separation and dislocation arising from removal of a person who has no recognized status to remain in Canada does not ordinarily constitute irreparable harm (see Melo v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. 403, per Pelletier J. at paras. 20, 21), in my view the special circumstances of this case warrant a different outcome. The sworn evidence of the Applicant and of his wife, the latter with support from correspondence of her psychologist, is clear that she continues to suffer psychological difficulties arising from her own experience, that led to her acceptance as a Convention refugee. Her psychological difficulties are serious, exacerbated by the stress of uncertainty of the removal of the Applicant, her husband, who is unable to work in his current immigration status and who has been the principal caregiver for three Canadian-born infant children of the family. The children's interests, it is said, have not been considered.
[8] It is suggested that the evidence of these circumstances is questionable, but it is sworn by affidavit and there has been no cross-examination. The principal concern of the application for leave and for judicial review of the refusal to defer removal is that no consideration appears to have been given to humanitarian and compassionate concerns raised by counsel's written request for deferral. An affidavit in support of the Respondent's position indicates that the Applicant's circumstances were considered, but that evidence in this case is hearsay, not by affidavit of the removal officer concerned.
[9] In my opinion the special family circumstances of the Applicant, i.e., his wife's illness and the interests of three Canadian children, would be irreparably harmed if he were now removed, without any clear indication that the family's circumstances had been considered, and subsequently, if either application for leave and for judicial review were to be allowed or the Applicant's H & C application were to be allowed, and at a future date he were found to have a right to remain in Canada.
[10] In the circumstances, the balance of convenience favours the grant of a stay of the Applicant's removal. In my opinion that serves the interests of justice in this case.
[11] Nevertheless, the Applicant and his family should take no special comfort, other than temporary, from the relief now granted. It does not serve to indicate how any application for leave or for judicial review, or the application for landing on humanitarian and compassionate grounds, may ultimately be determined. The Applicant has not yet established a right to remain in Canada apart from the temporary stay now granted and, if no further right is established, the Minister's obligation to remove him from Canada remains and must be expected to be fulfilled.
(Sgd.) "W. Andrew MacKay"
Judge
Vancouver, B.C.
July 21, 2003
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-4356-03
STYLE OF CAUSE: EDWARD MBOYA OKOJIE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, JULY 04, 2003
REASONS FOR ORDER: MacKAY J.
APPEARANCES BY:
Mr. Kingsley Jesuorobo For the Applicant
Ms. Ann-Margaret Oberst For the Respondent
SOLICITORS OF RECORD:
Kingsley Jesuorobo
Barrister & Solicitor
Toronto, ON For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada For the Respondent