Date: 20040405
Docket: IMM-885-04
Citation: 2004 FC 523
Ottawa, Ontario, this 5th day of April, 2004
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
KAYODE AREMU SHONUBI
Applicant
- and -
THE SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] The applicant is a citizen of Nigeria who arrived in Canada in 2000.
[2] The applicant made a Convention refugee application, which was rejected by the Refugee Protection Division of the Immigration and Refugee Board on April 28, 2003. The applicant did not seek judicial review of this decision.
[3] In August 2003, the applicant filed an application for exemption from permanent resident visa requirements on humanitarian and compassionate ("H & C") grounds. No decision has been made on this application to date.
[4] In October 2003, the applicant made an application for a Pre-Removal Risk Assessment ("PRRA"). On January 23, 2004, the applicant attended a meeting with immigration officials, who told him that his PRRA application was rejected and that he would be removed to Nigeria on January 28, 2004.
[5] The applicant was arrested for detention pending removal. On January 26, 2004, counsel for the applicant requested in writing that his client's removal be delayed. By letter dated January 27, 2004, the applicant's request for a deferral of his removal was refused.
[6] Also on January 27, 2004, O'Reilly J. stayed the applicant's removal for a period of seven days to permit time for the filing of proper materials for a stay motion.
[7] On February 2, 2004, the applicant filed an application for leave to judicially review the removal officer's negative decision.
[8] On February 3, 2004, the applicant filed this motion to stay the execution of his removal order, pending the outcome of his underlying judicial review application. The respondent undertook to not deport the applicant pending the Court's determination of this motion.
[9] The removal of the applicant and others was to be carried out by way of a joint removal arrangement with the United States.
Issue
[10] Should an order issue staying the removal of the applicant?
Analysis and Decision
[11] It is now accepted that an officer has some discretion and may, in certain circumstances, stay the removal of an applicant (see Wang v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 295 (QL), 2001 FCT 148).
[12] In order to obtain a stay, the applicant must satisfy the requirements set out in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.), at page 305:
This Court, as well as other appellate courts have adopted the test for an interim injunction enunciated by the House of Lords in American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 [Footnote 3 appended to judgment]. As stated by Kerans J.A. in the Black case supra:
The tri-partite test of Cyanamid requires, for the granting of such an order, that the applicant demonstrate, firstly, that he has raised a serious issue to be tried; secondly, that he would suffer irreparable harm if no order was granted; and thirdly that the balance of convenience considering the total situation of both parties favors the order.
The applicant must meet all three branches of the tri-partite test.
[13] I propose to deal first with the irreparable harm branch of the Toth, supra test as it applies to the applicant. The applicant submits that he will suffer irreparable harm in that he will suffer risk if he is returned to Nigeria, that he runs the risk of losing his assets in Canada as he has been unable to wind down his affairs in Canada and he will not be in Canada to pursue his application for a review of the removal officer's decision which involves constitutional arguments. The applicant also submits that he is waiting for a decision in his H & C application. I am not satisfied that the applicant would suffer irreparable harm based on these arguments and the facts of this case. In coming to this conclusion, I have reviewed all of the applicant's materials.
[14] I have considered the applicant's Charter arguments and I am of the view that these arguments are moot as no joint removal arrangement is in place and I am not prepared to exercise my discretion to consider the arguments.
[15] As the applicant must meet all three branches of the tri-partite test of Toth, supra, I will not discuss the serious issue and balance of convenience branches of the test.
[16] The applicant's motion for a stay of his removal order is denied.
ORDER
[17] IT IS ORDERED that the applicant's motion for a stay of his removal order is denied.
"John A. O'Keefe"
J.F.C.
Ottawa, Ontario
April 5, 2004
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-885-04
STYLE OF CAUSE: KAYODE AREMU SHONUBI
- and -
THE SOLICITOR GENERAL OF CANADA
PLACE OF HEARING: By Way of Telephone Conference Between
Ottawa and Toronto
DATE OF HEARING: February 11, 2004
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: April 5, 2004
APPEARANCES:
Mr. Kingsley Jesuorobo
FOR APPLICANT
Ms. Lisa Hutt
FOR RESPONDENT
SOLICITORS OF RECORD:
Kingsley I. Jesuorobo
North York, Ontario
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT
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