Olawaore v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1285

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2001 FCT 1285

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Text of decision

Date: 20011122

Docket: IMM-5293-01

Neutral citation: 2001 FCT 1285

Toronto, Ontario, this 22^nd day of November, 2001

PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

SAMUEL OLAWORE

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1] The applicant is a citizen of Nigeria who came to Canada on November 11, 1997.

[2] The applicant, in his affidavit, states that the annual sales from his business in Canada is close to $400,000 and his counsel states that he has an income of close to $80,000 per year.

[3] The applicant, in his affidavit, states that he supports his two children and is their sole financial supporter.

[4] The applicant, in his affidavit, states that he only learned, when he was detained on Friday, November 16, 2001 that he would be removed from Canada to Nigeria on Monday, November 19, 2001.

[5] The applicant states that he will not be able to wind down his business if required to leave Canada on November 19, 2001.

[6] An application for H & C consideration was filed by the applicant in December, 2000 and the application has not been decided.

[7] According to the affidavit of Rocchina Volpe, an employee of the Department of Justice, the applicant filed a refugee claim when he entered Canada. The claim was denied and leave to have a judicial review of the decision was denied.

[8] The applicant has no criminal record.

[9] There is an H & C application pending decision for the applicant. According to the applicant, he filed an H & C application in December, 2000 while the respondent states that it shows on the system in March, 2001.

[10] According to the affidavit submitted by the respondent, the applicant was arrested by police for immigration officials on August 26, 2001 for removal from Canada. At this time, he was released on a $2,500 cash bail and a $2,500 performance bond. He was also required to abide by the following terms:

1. Reside at 255 Dolly Varden Boulevard; and

2. To not engage in employment in Canada.

[11] The applicant moved from the above address and returned to his previous residence and did not seek any authorization to so do.

[12] Issue

Should the removal order issued against the applicant be stayed?

[13] Analysis and Decision

The applicant must meet all three requirements set out in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.) in order to be granted a stay. These requirements are:

1. He must have raised a serious issue to be tried;

2. He will suffer irreparable harm if the order is not granted; and

3. The balance of convenience having consideration of the total situation of both parties favours the order being granted.

[14] The applicant has raised as a serious issue, the fact that his life would be in danger if he is returned to Nigeria. I have reviewed the documentary evidence filed with his H & C application and I am satisfied that he will suffer irreparable harm as a Christian clergyman. His life could be in danger if he is returned to Nigeria. This raises a serious issue.

[15] As to irreparable harm, I am satisfied that the applicant would suffer irreparable harm if he was injured or his life put in danger because of his religious beliefs.

[16] The balance of convenience favours the applicant as the Minister can carry out her duties under the Immigration Act, R.S.C. 1985 c. I-2 as soon as the H & C application is disposed of. There is no evidence that indicates that the applicant is a danger to the public.

[17] The removal order issued by Enforcement Officer M. Catenaccio to remove the applicant to Nigeria is hereby stayed until the applicant's application for leave for judicial review is denied, if leave is denied, and, if leave is granted, then until the application for judicial review is finally disposed of by the Court.

ORDER

[18] IT IS ORDERED that the removal order issued by Enforcement Officer M. Catenaccio to remove the applicant to Nigeria is hereby stayed until the applicant's application for leave for judicial review is denied, if leave is denied, and, if leave is granted, then until the application for judicial review is finally disposed of by the Court.

"John A. O'Keefe"

J.F.C.C.

Toronto, Ontario

November 22, 2001

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: IMM-5293-01

STYLE OF CAUSE: SAMUEL OLAWORE

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

PLACE OF HEARING: TORONTO, ONTARIO

DATE OF HEARING: MONDAY, NOVEMBER 19, 2001

REASONS FOR ORDER

AND ORDER BY: O'KEEFE J.

DATED: THURSDAY, NOVEMBER 22, 2001

APPEARANCES:

Mr. Munyonzwe Hamalengwa

For the Applicant

Ms. Allison Phillips

For the Respondent

SOLICITORS OF RECORD:

Munyonzwe Hamalengwa

Barrister & Solicitor

45 Sheppard Avenue East

Suite 900

Toronto, Ontario

M2N 5W9