Okolo v. Canada (Minister of Citizenship and Immigration), docket IMM-55-01

    

     Date: 20010109

     Docket: IMM-55-01

OTTAWA, ONTARIO, TUESDAY, THE 9^TH DAY OF JANUARY, 2001

PRESENT: THE HONOURABLE EDMOND P. BLANCHARD

BETWEEN:

                     STANLEY DADA OKOLO

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER AND ORDER

    

     UPON MOTION on behalf of the applicant for a stay of execution of the removal order in respect of the applicant;

     AND UPON motion for leave and application for mandamus;

     AND UPON reading the material before the Court;

     AND UPON hearing counsel for the parties by telephone conference;

[1]      In immigration matters, this Court has clearly established that the test for considering whether to grant a stay of proceedings is similar to that for an interlocutory injunction¹. The test requires, for the granting of such an order, that the applicant demonstrate:

(1)      that he has raised a serious issue to be tried;

(2)      that he would suffer irreparable harm if no order was granted; and

(3)      that the balance of convenience considering the total situation of both parties, favours the grant of the stay.

[2]      Counsel for the applicant, upon learning that the applicant was found not to be a member of the Post-Determination Refugee Claimants in Canada Class on August 19, 1997, conceded that the only remaining issue is whether a stay should be granted to allow the applicant to pursue legal actions notably against the Calgary Police Service for false arrest and false imprisonment.

[3]      Where the applicant was found not to be a member of the Post Determination Refugee Claimants in Canada Class on August 19, 1997, the application for leave and for mandamus is moot.

Serious Issue to be Tried

[4]      Given that there are no outstanding applications under the Immigration Act, R.S.C. 1998, c. I-2, and where the applicant has not shown that any issue remains to be determined regarding his status as an immigrant or refugee under the Immigration Act, I find that the applicant has failed to establish a serious issue, even though the threshold to be met is rather a low one².

[5]      Counsel for the applicant argued that the alleged wrongful arrest, combined with the fact that deportation will make pursuing his intended legal action very difficult, is sufficient to grant the applicant a stay. I cannot accept this submission.

[6]      The applicant has gone through the immigration process. A conditional departure order was issued on February, 28, 1996. A statutory stay pursuant to s.49 of the Immigration Act took effect on February 4, 1997, following the filing of an application for leave and judicial review. Leave for judicial review was dismissed on June 9, 1997. The applicant was also found not to be a member of the Post-Determination Refugee Claimants in Canada on August 19, 1997.

[7]      The applicant's deportation order was deemed effective as of midnight September 25, 1997.

[8]      The applicant will be able to pursue his intended legal actions from Nigeria. Moreover, there is no evidence that enables me to conclude that there is a serious issue to be tried.

[9]      Furthermore, even if I had come to the conclusion that there was a serious issue to be tried, I find that no irreparable harm will be suffered by the applicant if the stay is not granted.

     ORDER

     THIS COURT ORDERS that:

1.      The motion for an interlocutory order staying the removal order is dismissed.

2.      The application for leave and for mandamus is dismissed.

     "Edmond P. Blanchard"

     Judge

__________________

¹      Toth. v. Canada (Minister of Employment and Immigration), (1988, 6 Imm. L.R. (2d) 123.

²      Copello v. Canada (Minister of Foreign Affairs) (1998), 152 F.T.R. 110 at 111 (T.D.).