Owaseye v. Canada (Minister of Citizenship and Immigration), 2002 FCT 340

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2002 FCT 340

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Text of decision

Date: 20020326

Docket: IMM-1187-02

Neutral citation: 2002 FCT 340

Toronto, Ontario, Tuesday the 26^th day of March, 2002

PRESENT: The Honourable Mr. Justice John A. O'Keefe

BETWEEN:

OLUSOLA TITUS OWASEYE

OLUBUMNI GLADYS OWASEYE

Applicants

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1] This is a motion by the applicants for an order staying their removal from Canada to Nigeria on March 28, 2002, until the final disposition of the judicial review proceedings filed herein.

[2] The applicant, Olusola Titus Owaseye was bishop and pastor of the Victory Fellowship Church International.

[3] The applicant, Olusola Titus Owaseye stated he fled persecution in Nigeria because he was about to inherit the chieftancy of the Ogalugodo Tribe in Nigeria.

[4] Prior to the applicant becoming chief, his wife was required to undergo a ritual known as the "Queen's final cut". The procedure known as the "Queen's Cut Ceremony" is part of the cult ritual required for a chief to assume his position.

[5] If either the chief or his bride fail to accept the ritual, they are marked for death. The intended chief's first wife died as a result of the same ritual.

[6] The applicant deposed that he and his wife would face a reasonable possibility of being murdered or seriously injured.

[7] The applicants made a Convention refugee claim and a Post Determination Refugee Claimants in Canada ("PDRCC") application, both of which were denied. The applicants filed for judicial review of the PDRCC decision on March 14, 2002.

[8] The applicants filed an H & C application on October 10, 2001.

Issue

[9] Should an order issue staying the removal of the applicants?

Analysis and Decision

[10] It is now accepted that a removal officer has some discretion and may, in certain situations, stay the removal of the applicants (see Wang v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 295 (F.C.T.D.)).

[11] In order to obtain a stay, the applicants 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 applicants must meet all three branches of the tri-partite test.

[12] Serious Issue

I find that a serious issue has been raised and that serious issue is whether the Post Claim Determination Officer erred in her understanding of the factual evidence that was before her.

Irreparable Harm

The applicants have stated that should they be returned to Nigeria, their lives will be at risk. The Post Claim Determination Officer seems in one part of her report to confirm this. She stated:

It appears from the evidence before me the risk is risk to life and inhumane treatment because the male applicant refused to become chief of the Ogalugodo and because the female applicant did not get the "Queen's final Cut".

[13] In another part of her risk assessment, she stated that she was "concerned about their unrefuted testimony before the CRDD". I am satisfied, based on the above statements, the applicants would suffer irreparable harm if removed to Nigeria.

[14] Balance of Convenience

The applicants are not in custody and pose no threat to the public. I am aware that the Minister has a duty to enforce the provisions of the Immigration Act, R.S.C. 1985, c. I-2, but that can be done as soon as the judicial review proceedings are completed if the outcome is unfavourable to the applicants.

[15] The removal order issued against the applicants is hereby stayed until the final disposition of the judicial review application filed herein.

ORDER

IT IS ORDERED THAT:

1. The removal order issued against the applicants is hereby stayed until the final disposition of the judicial review application filed herein.

"John A. O'Keefe"

J.F.C.C.

Toronto, Ontario

March 26, 2002

FEDERAL COURT OF CANADA

Names of Counsel and Solicitors of Record

COURT NO: IMM-1187-02

STYLE OF CAUSE: OLUSOLA TITUS OWASEYE

OLUBUMNI GLADYS OWASEYE

Applicants

- and -

THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

Respondent

DATE OF HEARING: MONDAY, MARCH 25, 2002

PLACE OF HEARING: TORONTO, ONTARIO

REASONS FOR ORDER

AND ORDER BY: O'KEEFE J.

DATED: TUESDAY, MARCH 26, 2002

APPEARANCES BY: Mr. Shane Watson

For the Applicants

Ms. Mary Matthews

For the Respondent

SOLICITORS OF RECORD: Shane M. Watson

Barrister & Solicitor

Suite 407, Burlington Square

760 Brant Street

Burlington, Ontario

L7R 4B7