Date: 20060719
Docket: T-1156-06
Citation: 2006 FC 903
BETWEEN:
SANDYBAY OJIBWAY FIRST NATION
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION and
THE ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR ORDER
HARRINGTON J.
[1] Nkemhurunaya Juliana Eligwe is a Roman Catholic nun from Nigeria. She is not a status Indian from Manitoba. The Minister has ordered her removal from Canada tomorrow. His order will not be stayed.
[2] Sister Eligwe came to Canada in 2001 on a visitor's visa. Her claim that she was a refugee within the meaning of the United Nations Convention was rejected. More recently, she requested a Pre-risk Removal Assessment and that the Minister exercise his discretion and grant her permanent resident status on humanitarian and compassionate considerations as contemplated by section 25 of the Immigration and Refugee Protection Act, (IRPA). The officer who reviewed her applications decided that although she was indeed a woman of good works and widely respected, discretion would not be exercised in her favour. As to her return to Nigeria, the review of conditions there was extremely detailed. Sister Eligwe comes from a Christian area, largely populated by Catholics, Anglicans and Methodists. He found no serious risk of persecution even should she wear a religious habit.
[3] Sister Eligwe brought on an application for leave and judicial review of these two decisions, which were rendered 31 March 2006. Within that Court docket IMM-3744-06, she sought a stay of her removal order. However, during the course of hearing two days ago, she abandoned her motion.
[4] The Sandy Bay Ojibway First Nation has now in its own name filed an application for judicial review of those two decisions. I will ignore certain irregularities. An application for judicial review is usually limited to one decision. Here there were two. If this is an application under IRPA, it should have been taken within 15 days of the decision, and requires leave before it can be heard on the merits. If it is an application under the Federal Courts Act, it should have been taken within 30 days. No motion for an order extending time has been made.
[5] The gist of the application is that following the decisions adverse to Sister Eligwe, on 26 June there was an acceptance of and approval of her adoption into the Band membership of the Sandy Bay Ojibway First Nation.
[6] Section 19 of IRPA provides that "every person registered as an Indian under the Indian Act has the right to enter into and remain in Canada..." Although Sister Eligwe is not registered under the Indian Act, it is argued she is entitled to be registered under s. 6(1)(b) of that Act as she is a member of a body of persons that has been declared by the Governor-in-Council to be a band.
[7] The argument continues that the Band has the right to determine its own membership, and has sufficient standing in its own right to challenge the two decisions made on behalf of the Minister because, as the Band Council Resolution reads: "whereas the Chief & Council support all its Band members via birth or adoption into Sandy Bay Ojibway First Nation."
[8] Following oral representations on behalf of the Band, I dismissed the application.
[9] The Band does not have standing. Section 18.1 of the Federal Courts Act allows for an application for judicial review "by anyone directly affected by the matter in respect of which relief is sought." The person directly affected is Sister Eligwe. The Band is only indirectly affected.
[10] Furthermore, an application for a stay is an extraordinary remedy. There must be a serious underlying issue, there must be irreparable harm if the stay is not granted, and the balance of convenience must favour the applicant, (see: Toth v. Canada(Minister of Employment and Immigration), (1988) 86 N.R. 302; RJR-MacDonald Inc. v. Canada(Attorney General), [1994] 1 S.C.R. 311).
[11] As to the serious issue, the proposition put forward if brought to its extreme is that each and every band (and there are more than 600) has the power to usurp the discretion of the Minister of Citizenship and Immigration by accepting non-residents as band members and thereby granting them permanent resident status.
[12] It is not necessary for me to comment on the seriousness of the underlying issue, as no case has been put forward that there would be irreparable harm. The argument was simply that Sister Eligwe was a member of the Sandy Bay Ojibway First Nation which had an aboriginal right to designate who are its members and that said members could not be forcibly required to leave the country. If in the course of time that proposition proves to be correct, Sister Eligwe may return.
[13] Furthermore, the balance of convenience favours the Minister. This is certainly one case where the public interest as set out in section 48 of IRPA requires that removal orders be enforced as soon as reasonably practical. The purpose of the adoption appears to be to allow Sister Eligwe to remain in Canada. She is in fact indentured to the First Nation because the resolution also provides "...this Band Council Resolution ... will remain in force until such time as the Sandy Bay Ojibway First Nation and Council rescind these instructions in writing [sic] consent of Chief & Council." Today she is a member of the Band, tomorrow she may not!
Sister Eligwe's religious status
[14] Be it not thought that she is being removed from Canada because she is a nun. Section 186(l) of the Immigration and Refugee Protection Regulations provides that a foreign national may work in Canada without a work permit.
(l) as a person who is responsible for assisting a congregation or group in the achievement of its spiritual goals and whose main duties are to preach doctrine, perform functions related to gatherings of the congregation or group or provide spiritual counselling;
Furthermore, under section 205 a work permit may be issued if the work "is of a religious or charitable nature".
[15] Sister Eligwe seems to have done nothing to establish herself in that regard. The H & C decision is most laudable of her qualities. It brings to mind Timothy 5:10: "Well reported of for good works; if she have brought up children, if she have lodged strangers, if she have washed the saints' feet, if she have relieved the afflicted, if she have diligently followed every good work." Criminals are kept out of Canada, but saints are not necessarily let in.
[16] Moreover, she has worked here as a short order cook and in other non-religious capacities, although she has also led the band's choir and has been of spiritual assistance to many. There is no evidence whatsoever that she has any diocesan status.
[17] These are the reasons I dismissed the motion earlier today, with costs, in favour of the respondents, in the amount of $1,000 payable forthwith in any event of the cause.
"Sean Harrington"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1156-06
STYLE OF CAUSE: Sandy Bay Ojibway First Nation v. Minister of Citizenship and Immigration and the Attorney General of Canada
PLACE OF HEARING: Ottawa, Ontario and Winnipeg, Manitoba via Teleconference call
DATE OF HEARING: July 19, 2006
REASONS FOR ORDER: HARRINGTON J.
DATED: July 19, 2006
APPEARANCES:
Mr. Hafeez Khan FOR APPLICANT
Ms. Dayna S. Anderson and
Ms. Carena Roller FOR RESPONDENTS
SOLICITORS OF RECORD:
Booth Dennehy LLP FOR APPLICANT
Winnipeg, Manitoba
John H. Sims, Q.C. FOR RESPONDENTS
Deputy Attorney General of Canada
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