Date: 20060127
Docket: IMM-6873-05
Citation: 2006 FC 83
OTTAWA, ONTARIO, JANUARY 27, 2006
PRESENT: THE HONOURABLE MR. JUSTICE LEMIEUX
BETWEEN:
IKEJIANI EBELE OKOLOUBU
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] These reasons confirm those which I rendered orally after hearing counsel for the parties on Wednesday, January 25, 2006, on Mr. Okoloubu's motion for a stay of his removal to Nigeria, his country of citizenship, which was scheduled to be enforced on Monday, January 30, 2006.
[2] As I explained to counsel orally after hearing their submissions which I very much appreciated in terms of substance, comprehension and compassion in the circumstances, my view is that a stay of the applicant's removal is warranted on grounds of serious issue, irreparable harm and balance of convenience.
[3] The applicant arrived in Canada on September 22, 1998. His dealings with immigration officials and tribunals has been lengthy and complicated including:
(1) A failed refugee claim on October 4, 1999, when the Refugee Division dismissed his claim. Leave to appeal to the Federal Court was not sought.
(2) Two applications for permanent residence in Canada which were denied. The first refusal occurred in October 1999. No leave to appeal was sought from this Court. The second refusal occurred in October of 2004. Leave to appeal to this Court denied by one of its judges.
(3) A failed PRAA application refused on December 9, 2004, no leave from this Court being sought.
[4] The central element of the applicant's story is his relationship with Cynthia Nwogu who was born in Nigeria and is a recognized Canadian Convention refugee. The applicant met her in early 2002. They were married in July 2003. There is no contention by the respondent that the marriage is anything but bone fide. A Canadian son was born to the couple on October 13, 2005.
[5] Cynthia Nwogu applied for permanent residency in Canada on the basis of her refugee status and advised Citizenship and Immigration Canada (CIC) of her marriage to the applicant so he could be included. Unfortunately, when the permanent residence visa was issued to Cynthia Nwogu, the applicant's name had not been included because appropriate forms had not been supplied.
[6] In July 2005, the applicant apparently made a third application for permanent residence on H & C grounds coupled with his wife's sponsorship but apparently did not pay the appropriate fee until November 2005. On January 9, 2006, the applicant was advised by CIC Vegreville that his sponsored application for permanent residence would be processed when the approval for sponsorship and undertaking from the Ministère de l'Immigration et des Communautés culturelles was received by CIC since the sponsor is in Montreal.
[7] The crux of the issue before me centres on the exercise of the limited discretionary authority which a removal officer has to defer the execution of a valid removal order. It is common ground that under section 48 of the Immigration and Refugee Protection Act, when a removal order is enforceable, a foreign national against whom it was made must leave Canada immediately and it must be enforced as soon as is reasonably practicable. The jurisprudence from this Court clearly recognizes the limited nature of the deferral authority of a removal officer.
[8] The facts of this case show that the removal officer had previously deferred the applicant's removal. Paragraphs 19, 20, 21, 22, 23, 24 of the removal officer's affidavit filed in opposition to the stay motion read:
19. Lors de ma rencontre avec le demandeur le 17 novembre 2005, j'ai refusé de reporter son renvoi en lui expliquant que son départ avait déjà été reporté à multiples reprises à sa demande, soit lorsque son épouse avait suivi des traitements de fertilité, soit parce qu'elle était ensuite enceinte et finalement pour lui permettre d'assister à l'accouchement. J'ai toutefois fait preuve d'une certaine souplesse et lui ai accordé trois mos de délais avant le départ, suite à l'accouchement de sa femme afin qu'il puisse l'aider à se remettre de son accouchement.
20. Lors de cette rencontre j'ai cependant indiqué au demandeur que je le rencontrerais le 13 janvier 2006 pour préparer les arrangements de départ et qu'il devait alors avoir en sa possession un billet d'avion pour le Nigeria, le tout tel qu'il appert de la pièce « H » que je dépose à l'appui du présent affidavit.
21. Le 12 janvier 2006, le demandeur a déposé une demande de sursis de son renvoi prévu pour le 29 janvier 2005.
22. Le 13 janvier 2006, le demandeur s'est présenté à une entrevue portant sur son renvoi à l'Agence des services frontaliers du Canada avec en sa possession un billet d'avion pour le Nigeria en date du 30 janvier 2006, le tout tel qu'il appert du dernier paragraphe de la pièce « E » que je dépose au présent affidavit.
23. Le 13 janvier 2006, le procureur du demander m'a envoyé par télécopieur une demande de sursis administratif afin de reporter son renvoi jusqu'à ce qu'une décision soit rendue dans le cadre de sa nouvelle demande CH, le tout tel qu'il appert de la pièce « I » que je dépose à l'appui de mon affidavit.
24. J'ai refusé cette demande par écrit compte tenu du nombre très élevé de reports déjà accordés au demandeur et compte tenu que les frais de a nouvelle demande CH n'ont été payés qu'à la fin novembre 2005, le tout tel qu'il appert de la pièce « J » que je dépose à l'appui du présent affidavit.
[9] The birth of the son's couple was a difficult one for Cynthia Nwogu. She states in her supporting affidavit that she has suffered from post-partum depression since her son was born. She is receiving treatment from doctors, a psychologist and help from social workers. She states it is her husband who helps to feed the baby at night and is the main person to do so. She is taking medication for depression once a day at night which is another reason why her husband must look after the child at night.
[10] I find the applicant has raised a serious issue whether the removal officer failed to properly exercise her discretion by not taking into account the family situation: the best interest of the Canadian child in the present circumstances, the illness of the mother, the dependency on the father and the impact of his removal from Canada on the family unit.
[11] I interpret the removal officer's decision not to defer as saying "enough is enough; I have already deferred several times". This arguably is an irrelevant consideration or a fetter of discretion.
[12] I find the applicant has satisfied the irreparable harm test as set out in Toth v. M.E.I. (1988), 86 N.R. 302, (F.C.A.). In fact, the Toth case is somewhat analogous in terms of the impact which the applicant's removal would have on the business he operates. More importantly, however, it is the harm which is likely to befall the applicant and his family should he be removed in the particular circumstances of Cynthia Nwogu's illness at the present time.
[13] In the circumstances, the balance of convenience favours the applicant.
[14] After stating orally that a stay would be granted, I raised a procedural point because the underlying application for leave and judicial review, to which the stay application is grafted, seeks a mandamus from this Court requiring that his third application for permanent residence on H & C grounds be studied before the removal order is executed. I told counsel for the parties I doubted I could issue an interim mandamus order. In addition, the focus of my reasons for a stay is on the exercise of the removal officer's discretion. In the circumstances, I granted leave to counsel for the applicant to amend his application for leave and judicial review so as to substitute as the grounds for review the wrongful exercise by the removal officer of her discretion in the circumstances. I also granted leave to the applicant to file an amended applicant's record.
ORDER
For reasons filed,
THIS COURT ORDERS THAT:
1. A stay of the applicant's removal is granted until such time as this Court decides whether to grant leave for judicial review and, if leave is granted, until this Court decides the judicial review application.
2. The applicant is granted leave to amend his application for leave and judicial review to substitute the grounds for review as identified in paragraph 13 of these reasons. The applicant should amend that application by Monday, February 6, 2006.
3. The applicant shall have until March 6, 2006, to file an amended applicant's record.
4. The respondent shall have 30 days to respond to the applicant's amended application record.
"François Lemieux"
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