Date: 20010518
Docket: IMM-2475-01
Neutral citation: 2001 FCT 510
BETWEEN:
JUSTIN ESENE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This application by way of an urgent and last minute telephone conference is for a stay of a deportation order removing the applicant on Saturday, May 19, 2001, to Nigeria, his country of origin.
1. Facts
[2] There is no affidavit from the applicant and no documents filed by the respondent because of the last minute urgency. It appears that the applicant already made a refugee claim after his arrival in Canada on the basis of his political opinion and his membership in a particular social group. That application was denied by the Refugee Board but the decision was not made available for the hearing. The applicant did not seek to leave to appeal that decision. The applicant thereafter made an application under the Post Determination Refugee Claimants in Canada ("PDRCC") class. His application was submitted late and outside the statutory time frame. Consequently, Canada Immigration declined to process the application. On May 14, 2001, Canada Immigration arrested the applicant on the ground that he did not show up for removal in March 2001.
[3] The applicant got married in November 2000 and he and his wife submitted a compassionate and humanitarian consideration under subsection 114(2) of the Immigration Act ("the Act") (R.S.C. 1985, c. I-2) in December 2000. However, the application has yet to be processed.
[4] There is also on file a radiology report from Diagnostic Imaging to the effect that the applicant has back problems: a small central disc herniation which causes a mild contour deformity and also a mild facet joint degenerative change, which counsel claims would render his removal difficult. The applicant's record also includes documentary evidence to the effect that there is a high level of insecurity in Nigeria.
2. Analysis
[5] The submission of the applicant is to the effect that there should be a stay of the removal until the applicant's humanitarian and compassionate application, with a risk assessment component, had been dealt with: the removal of the applicant without the respondent processing a sponsored application for landing on compassionate grounds "would be egregiously unjust". In the alternative, Canada Immigration ought to conduct a risk assessment prior to his removal.
[6] Undoubtedly, the applicant is entitled to make an independent application for humanitarian and compassionate relief but that application, by itself, does not constitute a ground for a stay of removal or deferral (see Ruquan Wang v. The Minister of Citizenship and Immigration, 2001 FCT 148). Furthermore, I am not convinced that the applicant will either suffer irreparable harm if he is removed to his country of origin because of any security risk to his person, or because of his back problems, or because of the separation from his new wife. Moreover, if his humanitarian and compassionate application is successful, he can always return to this country.
3. Disposition
[7] The applicant has not met the criteria for a stay and his application cannot be granted.
[8] The application is dismissed.
OTTAWA, Ontario
May 18, 2001
Judge