Docket: IMM-4025-11
Citation: 2011 FC 748
[UNREVISED CERTIFIED
ENGLISH TRANSLATION]
Ottawa,
Ontario, June 22, 2011
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
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OMGBA FRANÇOIS EMMANUEL
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Applicant
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and
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MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR
ORDER AND ORDER
I. Preamble
[1]
The
reward of the truth, once understood, is an openness to the interpretation of
immigration laws that provide access to the improvements regarding the
precarious human condition intended by Parliament; on the other hand, lies bar
access to undeserved settlement opportunities to preserve the integrity of the
immigration system.
[2]
Under
subsection 48(2) of the Immigration and Refugee Protection Act, SC 2001,
c. 27 (IRPA) a removal order must be executed as soon as circumstances allow.
This applies to the present situation.
[3]
The
applicant's removal is not simply a question of administrative convenience, it
is about the integrity and fairness of the Canadian immigration control system
and the public's faith in that system.
[4]
For
these reasons, the balance of convenience favours public interest and the
continuation of the immigration process provided under the IRPA.
II. Introduction
[5]
The
applicant, a citizen of Cameroon, filed a motion for a stay of the removal
order issued against him. This motion is related to an application for leave
and judicial review (ALJR) against the Direction to Report.
III. Facts
[6]
The
applicant, François Emmanuel Omgba, is a citizen of Cameroon.
[7]
On
March 26, 2005, Mr. Omgba married Crescence Marguerite Ntolo Essama in Paris.
[8]
Without
getting divorced, Mr. Omgba married Andeng Embolo, a Canadian citizen, on
January 6, 2007.
[9]
On
December 19, 2005, Mr. Omgba submitted an application for a permanent residence
visa in the family class.
[10]
After
this application was accepted, Mr. Omgba came to Canada on September 24, 2007,
and was admitted as permanent resident.
[11]
On
July 11, 2008, Crescence Marguerite Ntolo Essama went to the Canadian embassy
in Paris to inform the Canadian authorities of Mr. Omgba's marital status.
[12]
On
September 16, 2008, an inadmissibility report for misrepresentation pursuant to
paragraph 40(1)(a) IRPA was issued against the applicant.
[13]
On
April 20, 2009, the Immigration Division of the Immigration and Refugee Board
(IRB) issued an exclusion order against Mr. Omgba.
[14]
Mr.
Omgba did not claim refugee protection.
[15]
On
February 18, 2010, the Superior Court of Québec annulled the marriage between
Mr. Omgba and Andeng Embolo, considering that during this marriage, he was
already married to a third party.
[16]
Mr.
Omgba admitted these facts and did not challenge the motion to annul the
marriage.
[17]
On
February 26, 2010, the Immigration Appeal Division (IAD) of the IRB dismissed
Mr. Omgba's appeal from the removal order and also found that he had not
demonstrated sufficient humanitarian and compassionate considerations to
warrant special relief in accordance with paragraph 67(1)(c) of the
IRPA.
[18]
Mr.
Omgba submitted an application for a Pre-Removal Risk Assessment (PRRA) on May
26, 2010.
[19]
On
February 11, 2011, a negative decision was rendered in that application.
[20]
Mr.
Omgba did not challenge that decision.
[21]
On
June 13, 2011, Mr. Omgba met with an IRPA enforcement officer who issued a
notice to appear on June 27, 2011, at 11:15 a.m. at the Jean-Lesage Airport for
his removal from Canada.
[22]
Mr.
Omgba did not submit an application to stay his removal to the IRPA enforcement
officer.
[23]
On
June 17, 2011, Mr. Omgba served and filed a motion to stay the removal order in
this case.
[24]
On
June 20, 2011, because of the high cost of the plane ticket for June 27, 2011,
the departure date was changed to June 30, 2011.
[25]
On
June 21, 2011, the IRPA enforcement officer contacted Mr. Omgba by phone to
inform him of the new removal date and ask him to go to the offices of the Canada Border Services Agency (CBSA) to get his
copy of the notice to appear.
III. Issue
[26]
Does
the motion have merit based on all the criteria in Toth v. Canada (Minister
of Employment and Immigration) (1988), 86 N.R. 302, 11 A.C.W.. (3d) 440
(FCA)?
IV Analysis
[27]
According
to the facts in evidence, Mr. Omgba did not meet any of the criteria in Toth,
supra. Namely, there is no serious issue, no irreparable prejudice nor
even a balance of convenience that favours him.
V. Conclusion
[28]
For
all these reasons, Mr. Omgba does not meet any of the criteria established by
the case law with respect to obtaining a judicial stay.
[29]
The
motion for a stay of the removal order is therefore dismissed.
ORDER
THE COURT ORDERS the dismissal of the motion
for a stay of the removal order.
“Michel
M.J. Shore”
Certified
true translation
Elizabeth
Tan, Translator
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