Date: 20040405
Docket: IMM-892-04
Citation: 2004 FC 525
Ottawa, Ontario, this 5th day of April, 2004
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
CHARLES IMAFIDON
Applicant
- and -
THE SOLICITOR GENERAL FOR CANADA
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] The applicant is a citizen of Nigeria who arrived in Canada in 1988 and claimed refugee status. His refugee claim was denied on April 6, 1988.
[2] The applicant was subsequently granted landed immigrant status based on his first wife's sponsorship.
[3] A deportation order was issued against the applicant on August 1, 1997 based on his criminal convictions in Canada. The applicant's appeal of his deportation order was denied by the Immigration Appeal Division in August 1988.
[4] The applicant failed to appear for his removal that was scheduled for July 27, 1999.
[5] The applicant's two applications for exemption from permanent resident visa requirements on humanitarian and compassionate grounds ("H & C") were rejected, the first on April 14, 2000 and the second on January 15, 2004.
[6] On October 4, 2002, the applicant's Pre-Removal Risk Assessment ("PRRA") was denied. The applicant was denied leave to seek judicial review of this decision on April 10, 2003.
[7] On January 26, 2004, an Immigration Enforcement Officer refused to defer the applicant's removal.
[8] On January 27, 2004, O'Reilly J. granted the applicant a seven day stay of his removal, in order to permit the filing of proper stay motion materials.
[9] On February 2, 2004, the applicant filed an application for leave to seek judicial review of the Immigration Enforcement Officer's decision.
[10] On February 3, 2004, the applicant filed this motion to stay his removal pending the outcome of the underlying judicial review application. The respondent undertook to not deport the applicant until this motion was decided by the Court.
[11] The applicant was scheduled for removal to Nigeria on January 28, 2004 by means of a joint group removal with the United States.
[12] The applicant has a pending criminal trial scheduled for August 19, 2004.
[13] The applicant raised constitutional issues based on the manner of removal of Nigerians from Canada.
[14] The applicant is married to a Canadian citizen and they have a Canadian born child and the applicant has another Canadian born child from a previous marriage.
[15] If the applicant is removed from Canada, the criminal charge against him will be stayed.
Issue
[16] Should an order issue staying the removal of the applicant?
Analysis and Decision
[17] It is now accepted that an expulsions 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).
[18] 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.
[19] Serious Issue
I am of the view that upon reviewing the H & C Officer's notes that the applicant has raised a serious issue and that issue is whether the best interests of the applicant's Canadian born child was properly assessed.
[20] Irreparable Harm
I am of the view that if the best interests of the applicant's Canadian born child have not been properly assessed by the officer, then irreparable harm would result to the child and consequently, to the applicant.
[21] Balance of Convenience
The applicant does not presently appear to be a threat to the public as his affidavit shows his only outstanding charge to be a failure to attend court, a charge of which he claims to be innocent. From the respondent's written representations, it appears that the applicant's last outstanding charge occurred on July 18, 1996. The respondent can, of course, still remove the applicant if his judicial review applications are not successful.
[22] As the applicant has met the tri-partite test in Toth, supra, a stay of his removal is granted.
ORDER
[23] IT IS ORDERED that the removal order issued against the applicant will be stayed until his applications for leave for judicial review are denied or if leave is granted, then the removal order is stayed until the judicial review application or applications are dealt with by the Court.
"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-892-04
STYLE OF CAUSE: CHARLES IMAFIDON
- and -
THE SOLICITOR GENERAL FOR 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. Munyonzwe Hamalengwa
FOR APPLICANT
Ms. Sally Thomas
FOR RESPONDENT
SOLICITORS OF RECORD:
Munyonzwe Hamalengwa
Mississauga, Ontario
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT
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