Date: 20040920
Docket: IMM-7996-04
Citation: 2004 FC 1286
Toronto, Ontario, September 20th, 2004
Present: The Honourable Mr. Justice von Finckenstein
BETWEEN:
TILO JOHNSON
Applicant
and
THE SOLICITOR GENERAL FOR CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for stay of a removal order slated for September 21, 2004.
[2] The facts in this case are concisely set out in paragraphs 2 to 10 (except paragraph 8 which expresses an opinion) of the affidavit of Yemi Caxton-Idowu filed as part of the Respondent's motion record which are hereby reproduced for convenience.
2. The Applicant is a citizen of Nigeria and entered Canada August 22, 1997 and claimed refugee status. The Refugee Division denied the Applicant's refugee claim on August 17, 1998 due to the fact that the Applicant's claim lacked credibility. The Applicant sought leave of this decision in August 1998 and leave was dismissed.
First H & C Application
3. The Applicant was married on September 18, 1998 and has a daughter from this marriage who was born in Canada. His wife applied to sponsor him for permanent residence and this application was denied on May 9, 2000.... The Applicant's wife withdrew her sponsorship prior to the decision and the Applicant was thus assessed as an independent applicant. The Applicant applied to this Court to judicially review the denial of landing on the basis that the best interests of his Canadian born child were not adequately considered. Leave was dismissed on November 6, 2000.
First Stay Application
4. The Applicant was arrested on June 13, 2000 and detained prior to his removal. He was scheduled for removal on July 2, 2000. When the Applicant was taken to the plane he became violent and had to be restrained to prevent him from injuring himself and others. The Peel police were called to the airport to assist security officers to escort him back to a holding cell. The Applicant's removal therefore had to be cancelled. On July 14, 2000 the Applicant brought a stay of removal when no removal had been rescheduled. The stay was adjourned sine die on August 28, 2000 and the underlying application for leave and judicial review was dismissed on November 6, 2000.
Extradition request from United States
5. While in custody in November 2000, and after the above removal attempt on July 2, 2000 by CIC had failed, the United States Embassy requested the Applicant's extradition. Because of this request, the Minister of Citizenship and Immigration could not proceed with further removal arrangements. A committal order was issued on November 23, 2001 an on May 6, 2002 the Minister of Justice ordered the Applicant's surrender to the United States. The Applicant successfully appealed the surrender, and the Court of Appeal found that the Minister's reasons did not fully consider all of the relevant circumstances to determine whether surrender would be unjust or oppressive.
6. The Applicant remained in detention after this decision was released from December 12, 2002 until February 26, 2003 when bail was posted for him.
7. CIC was informed on August 13, 2004 that the Minister of Justice discharged the Applicant from extradition proceedings.
...
PRRA application
9. The Applicant applied for a Pre-Removal Risk Assessment (PRRA), which was decided on April 8, 2003. The PRRA officer determined that the Applicant was not described in either s. 96 or s. 97 of the Immigration and Refugee Protection Act (IRPA). The Applicant did challenge this refusal by filing a leave application. His leave application was dismissed by this Court on June 25, 2004.
Second Humanitarian and Compassionate grounds Application
10. The Applicant filed a second H & C application in February 2003. This application has yet to be decided.
[3] To be successful in this application, the Applicant has to meet all three legs of the conjunctive tripartite test set out in Toth v. Canada (M.E.I.) (1988), 86 N.R. 302 (F.C.A.).
[4] As part of the irreparable harm leg the Applicant makes three claims:
1. the best interest of the child was not assessed in accordance with Martinez v. Canada (M.C.I.), [2003] F.C.J. N0 1695.
2. the Applicant has a lawsuit against the Crown for which his presence is required.
3. the Applicant will face risk upon his return which have not been assessed.
[5] In my view none of these claims can succeed for the following reasons.
[6] Undoubtedly the best interest of a child have to be considered in a removal process. See Dennis v. Canada (Solicitor General), [2004] F.C. 196. In this case, they were during the original H & C decision. The removals officer is not required to redo the decision when scheduling a removal; he/she must merely ensure that where children are involved, their interests have been looked at. Parenthetically, I might point out that I examined the materials sent to the removals officer in connection with the request for deferral on September 16, 2004. There is nothing in those materials which would suggest anything other the 'typical' pain involved in family separation. Family separation alone does not amount to hardship. See Buchting v. Canada (M.C.I.), [2004} F.C.J/ No 1216, para 6 and Parsons v. Canada (M.C.I.), [2003] F.C.J. No 1161, para 10.
[7] The same logic applies to risk. This Applicant has had a full PRRA determination. He sought judicial review of the negative PRRA decision and was denied leave. While he has filed in support of this motion a new Department of State report on Nigeria, which evidently shows how the situation has changed since 2003, no evidence has been submitted how the risk for him has in any way changed since the original PRRA report was made.
[8] As far as the lawsuit against the Crown is concerned, I find it difficult to accept that the launching of a lawsuit can be a bar to deportation proceedings. If I were to hold otherwise, any Applicant could commence a civil action to avoid removal. Lawsuits can be conducted from abroad against the Crown even if the Plaintiff has residence abroad see Gosczyniak v. Lewis (2001), O.J. No. 3622.
[9] I am also not convinced that the balance of convenience here rests with the Applicant. Given that he has had three judicial proceedings, a refugee determination, an H & C determination, and a PRRA determination as well as leave applications for judicial review of all three matters, the balance of convenience shifts to the Respondent. The Minister's interest in effecting removal outweighs the very slight possibility that the second H & C application will be successful.
[10] Accordingly, having failed to satisfy two of the three legs of Toth, supra this application fails.
ORDER
THIS COURT ORDERS that this application for a stay of removal be denied.
"K. von Finckenstein"
J.F.C.
FEDERAL COURT
Name of Counsel and Solicitors of Record
DOCKET: IMM-7996-04
STYLE OF CAUSE: TILO JOHNSON
Applicant
and
THE SOLICITOR GENERAL FOR CANADA
Respondent
DATE OF HEARING: SEPTEMBER 20, 2004
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: VON FINCKENSTEIN J.
DATED: SEPTEMBER 20, 2004
APPEARANCES BY:
Mr. Lorne Waldman
Ms. Krassina Kostadinov
FOR THE APPLICANT
Ms. Mary Matthews
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Waldman & Associates
Toronto, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
FOR THE RESPONDENT
FEDERAL COURT
Date: 20040920
Docket: IMM-7996-04
BETWEEN:
TILO JOHNSON
Applicant
and
THE SOLICITOR GENERAL FOR CANADA
Respondent
REASONS FOR ORDER AND ORDER
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