Docket: IMM-9826-11
Citation: 2012 FC 19
[UNREVISED CERTIFIED
ENGLISH TRANSLATION]
Ottawa, Ontario, January 5, 2012
PRESENT:
The Honourable Mr. Justice Shore
BETWEEN:
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GABRIEL OLA ALANI
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Applicant
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and
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THE MINISTER OF NATIONAL SAFETY
AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The applicant is submitting to this Court a
motion to stay a removal order issued against him, which is to be enforced on
January 7, 2012, at 3:40 p.m.
[2]
On September 20, 2006, the applicant was found
guilty in Brampton, Ontario, of possession of a forged or falsified credit card
within the meaning of paragraph 342(1)(c) of the Criminal Code,
an indictable offence punishable by a maximum of ten years imprisonment .
[3]
On May 9, 2007, the applicant submitted a first
application for permanent residence in the “spouse or common-law partner in
Canada” class. On February 4, 2008, Citizenship and Immigration (CIC) refused
the application because the sponsorship commitment made by Tishawna Davy was
not valid pursuant to sections 127, 133 and 137 of the Immigration and
Refugee Protection Regulations, SOR/2002-227 [IRPR].
[4]
On October 27, 2008, the applicant submitted a
second application for permanent residence in the “spouse or common-law partner
in Canada” class. CIC refused this application because the applicant was
inadmissible on grounds of criminality pursuant to paragraph 36(1)(a) of
the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] (also, subsection 10 of this same division).
[5]
On September 8, 2010, the applicant met with an enforcement
officer and presented him with an application for an administrative stay of his
removal from Canada, which was refused.
[6]
On November 15, 2010, the applicant submitted an
application for an exemption from a permanent resident visa for humanitarian
and compassionate considerations (H&C) supported by a sponsorship application
from his wife. This H&C application is still being processed and the CIC
has not yet made a decision to date.
[7]
On November 16, 2010, the applicant was the
subject of a report under section 44 of the IRPA and declared
inadmissible; specifically, a removal order was issued against him. This
section 44 report for criminality, issued pursuant to paragraph 36(1)(a)
of the IRPA, was given to him in person on that date.
[8]
This motion is incidental to an application for
leave and judicial review (ALJR) challenging the decision rendered orally on
December 22, 2011, by the enforcement officer of the Canada Border Services
Agency (CBSA), in which he refused the application to defer removal made by the
applicant that day. The written reasons for this refusal were provided at the
applicant's request, on December 23, 2011.
The applicant
does not have clean hands
[9]
It is well established that a stay application
is a discretionary remedy and, and that, according to the rules of equity,
those who come to the Court seeking a discretionary remedy must have clean
hands (Vasquez v Canada (Minister of Citizenship and Immigration), 2011 FC
1144 at para 27; Gosal v Canada (Minister of Public Safety and Emergency
Preparedness), 2010 FC 620 at paras 1, 21-37; Moore v Canada (Minister
of Citizenship and Immigration), 2009 FC 803 at para 1; Adams v Canada
(Minister of Citizenship and Immigration), 2008 FC 256 at para 2).
[10]
The Court agrees with the respondent's position
that the motion to stay should be dismissed because the applicant engaged in
unlawful conduct and acted in defiance of Canadian laws during his time in
Canada, almost immediately from the time he arrived in 2003 from Nigeria. Moreover,
the applicant acted in defiance of Canadian immigration laws by working
illegally with no concern for a work permit since January 2005, although, at
the same time, he was trying to regularize his residence status in Canada.
[11]
As a result, it is clear that the applicant does
not come before the Court with clean hands. He has anything but clean hands,
and this creates a major obstacle to obtaining the equitable remedy he is
seeking. Allowing the applicant to benefit from a stay, an exceptional remedy,
would also impair the integrity of the system and encourage illegality (Vasquez,
supra, at para 31; Gosal, supra, at para 1).
[12]
As a result, the motion to stay is dismissed.
JUDGMENT
THIS COURT ORDERS the dismissal of the motion
to stay the removal order.
“Michel
M.J. Shore”
Certified
true translation
Elizabeth
Tan
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