Date: 20090522
Docket: IMM-2257-09
Citation: 2009
FC 543
Ottawa, Ontario, May 22, 2009
PRESENT: The Honourable Orville Frenette
BETWEEN:
CHRISTOPHER
MUWULYA
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an
application on a motion to stay the execution of a deportation order scheduled
to be executed on Saturday, May 23, 2009 at 2pm.
BACKGROUND FACTS
[2]
The
Applicant, a citizen of Uganda, entered Canada as a visitor to attend a
conference, on July 14, 2002.
[3]
On July
25, 2002, he presented a refugee claim which was denied on March 8, 2004.
[4]
His
application for leave and judicial review against the above decision was denied
on May 25, 2004.
[5]
A
Pre-Removal Risk Assessment of January 2, 2009 was rejected on May 5, 2009.
[6]
An
Application for leave and judicial review of the PRRA decision was made on May
5, 2009.
[7]
When the
Applicant received a decision in respect for removal on May 23, 2009, he agreed
to leave voluntarily.
[8]
On May 21,
2009, he served this application for a stay of the deportation order.
[9]
He alleges
the PRRA Officer committed a reviewable error in considering new evidence, i.e.
two e-mails about the Applicant’s activities in Uganda. In addition, he claims his common-law
spouse is pregnant and he needs to take care of her and the child to be born.
PRELIMINARY ISSUES
1) Lateness of the stay
motion
[10]
The
Applicant does not provide any valid reason why the stay motion was presented
only two days before the date of removal. A stay is an extraordinary measure
which must not be but a last minute strategy to delay removal unless based upon
very serious reasons. Shi v. Canada (PSEPC), 2007 FC 534, para. 6:
6 I dismissed this motion
because of its lateness and because of the obvious prejudice to the Respondent
if the matter was heard on the merits. An applicant should not enjoy a
strategic advantage by bringing last-minute stay motions before the Court. This
is a discretionary and extraordinary remedy the granting of which requires a
meaningful record and careful consideration. This is the very type of situation
considered by the Federal Court of Appeal in El Ouardi v. Canada (Solicitor
General), [2005] F.C.J. No. 189, 2005 FCA 42, where Justice Marshall Rothstein observed:
6 I am
inclined to the view that, in the circumstances of this case, Blais J. was
entitled to determine, as an initial issue, whether to entertain the stay
motion and did not decline jurisdiction by dismissing the application on that
ground. In the case of a late application for a stay, a motions judge must be
given considerable leeway in dealing with the matter. In cases of late stay
applications, a requirement to consider the merits could result in an automatic
stay because of the need to give the Minister time to respond or the time
necessary for the Court to decide the matter. Therefore, in cases of late stay
applications, I doubt there is an obligation on the Court to consider the
merits in all cases, especially where the application is very late as in this
case. Certainly, the motions judge should consider the reason for the lateness
of the application. If the Minister is involved in the circumstances giving
rise to the delay, then the decision might be different than if the applicant
is responsible.
7 In the
present case, the facts are that the stay application could have been made on
or shortly after January 7, 2005, when the appellant was advised of her
scheduled removal date. In these circumstances, I tend to think that Blais J.
properly exercised his discretion not to entertain the very late stay motion,
that it was within his jurisdiction to do so, even though he may not have
considered the merits of the application and that the matter is not appealable
to this Court. However, the threshold for a serious issue is low and I do not
think it would be appropriate for me, sitting on a motion for a stay pending
appeal, to make a final decision on this issue.
2) The lateness of the
application for leave
[11]
The PRRA
decision is dated January 22 009, but the application for leave and judicial
review was only served on May 5, 2009 i.e. more than four months later.
[12]
A motion
in stay must be supported by an underlying application for leave. Section
72(2) of the IRPA requires that an application for leave be made within
15 days the applicant is informed of the decision.
[13]
Unless an
applicant obtains permission from a Judge of the Federal Court limit pursuant to
section 72(2)(c) of the IRPA, a prospective applicant cannot present his
application. To obtain an extension of time, the four conditions set out by the
Federal Court of Appeal in Canada (Attorney General) v.
Hennelly (1998)
244 N.R. 399, must be met.
[14]
Therefore,
for the Applicant has not satisfied these conditions in both the above reasons,
the stay application should be dismissed but I will also dismiss the application
because of its lack of merit.
3) The test for a stay removal
[15]
The test
on a stay of removal was set out by the Federal Court of Appeal in Toth v.
MCI (1988) 86 N.R. 302.
[16]
The test
is based upon three conjunctive conditions:
1. That there is a serious issue
to be tried;
2. That irreparable harm will be
caused if the stay is not granted;
3. That the balance of
convenience favours the granting of the stay.
The
serious issue to be treated
[17]
The test
for this condition is whether there is a serious issue to be tried which is
neither frivolous nor vexatious (Sowkey v. MCI, 2004 FC 67; Domingo v. MSPC, 2009 FC 425 paras. 38-41).
[18]
The Applicant
alleges that he filed an application for judicial review of the PRRA decision
because the officer considered “new evidence” i.e. two emails set to him about
the human rights situation in Uganda and the relation of the Applicant with an
opposition political party.
[19]
The
Respondent argues there is no serious issue raised. The interpretation of this
condition signifies that the Court must decide, whether on the merits, the
underlying application is likely to succeed. Simy Yu. v. Canada (MCI) 2009 FC 41 paras. 21-22.
[20]
The
Applicant contests the P RRA decision because the officer had considered emails.
The former could not consult them. A reading of the PRRA decision shows that
the Officer considered all of the evidence produced and he was not obliged to
refer to every detail in the evidence.
[21]
In my
view, not only was the decision the right one, but the IRB determined the Applicant
was not credible. The Applicant also argues his presence is necessary in Canada because his common-law wife
is pregnant and the child will need him. This is not a serious issue in this
case.
Irreparable
harm
[22]
The
Applicant alleges that he will suffer irreparable harm if returned to Uganda a country where his life will
be at risk. He also alleges his present situation has not allowed him to file
for a Humanitarian and Compassionate application. The Applicant alleges his
removal will negatively affect his ability to communicate with his counsel from
Uganda. The allegations are
speculative and cannot fulfil the requirements of this condition.
Disruption
of family life
[23]
The
jurisprudence of our Court has maintained that disruption of family life, loss
of employment, emotional stress, loss of financial support of a spouse, are all
incumbent consequences of a removal and therefore cannot be considered
irreparable damage (Malyy v. Canada (MSPP), 2007 FC 388, 156 A.C.W.S.
(3d) 1150; Sofela v. Canada (MCI) – 2006 FC 245, 146 A.C.W.S. (3d) 306; Chetary
v. MPEP , 2009 FC 436).
[24]
It has
been held that separation from a pregnant wife and two children may constitute
personal inconvenience, maybe even hardship, but it does not institute
irreparable harm (Castro v. MCI IMM-2729-97, July 4, 1997; Kwan v. Canada (MCI) (1998), 159 F.T.R. 262 para.
25).
[25]
In this
case the first condition has not been met.
Balance
of Convenience
[26]
Under
section 48(2) if the Act the Respondent has the obligation to execute an
order of removal as soon as it is reasonably possible. According to case law
the matter of public interest must be considered to satisfy this condition (Membrano-Garcia v. Canada (MCI) (1998) 3 F.C. 306, 55 F.T.R. 104; Blum
v. Canada (MCI), 90
F.T.R. 54; 52 A.C.W.S. (3d) 1099).
[27]
In the present case, an application for
leave and judicial review of the PRRA decision has not yet been granted leave.
There is question of an HC application is speculative not yet having been
filed.
[28]
Therefore
this balance of convenience favours the Respondent.
[29]
In
conclusion, the application for a stay has failed. This Court orders that the
application for a stay against the removal order is rejected.
ORDER
THIS COURT ORDERS that
- This application seeking a stay of
deportation is dismissed.
"Orville
Frenette"
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