Date: 20110526
Docket: IMM-3233-11
Citation: 2011
FC 623
Ottawa, Ontario, May 26, 2011
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
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PETER IBE OGBUKA
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION AND
THE MINISTER FOR PUBLIC
SAFETY AND EMERGENCY PREPAREDNESS
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Respondents
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REASONS FOR ORDER AND
ORDER
[1]
The
Applicant has brought this motion for a stay of removal of the Applicant to
Nigeria until final determination of the application for leave and judicial
review of a decision of an immigration officer (Officer) dated April 29, 2011,
in which decision the Officer determined that there were insufficient
humanitarian and compassionate (H&C) grounds for the processing of the Applicant’s
application for permanent residence in Canada.
[2]
I have
read the written submissions and heard the oral submissions of the parties.
[3]
I have directed
myself to the conjunctive tri-partite test in Toth v. Canada (Minister of Employment and
Immigration) (1988),
86 N.R. 302 (F.C.A.) and determined that this motion should be dismissed, for
the following reasons.
[4]
A review
of the detailed H&C decision demonstrates that there is no serious issue.
The Officer had regard to all of the evidence before her. In particular, the
Officer carefully considered all evidence put forward by the Applicant with
respect to the child affected by the decision and determined that the child’s
best interests did not outweigh the other factors. The Officer also explicitly
refers to and deals with every document submitted in support of the Applicant’s
allegations of risk.
[5]
I am also
not persuaded that the Officer erred by failing to “convert” this application
into an in-Canada spousal application. The Applicant provided insufficient
evidence to the Court in this motion to demonstrate that he complied with the
applicable CIC Policy or that he was eligible for such consideration.
[6]
Even if
there is a serious issue, the Applicant has failed to demonstrate irreparable
harm. The separation of the Applicant from his wife and young child does not
extend beyond the usual – albeit difficult – consequences of deportation. The
personal risk to the Applicant has been assessed by the Refugee Protection
Division of the Immigration and Refugee Board (the RPD), where the Applicant
was found to be not credible. He has received a negative pre-removal risk
assessment (PRRA) where an immigration officer concluded that he was not at
risk of torture or cruel and unusual punishment if returned to Nigeria.
[7]
With
respect to the balance of convenience, I note that the Applicant has been less
than truthful in his dealings with immigration authorities. His refugee claim
was dismissed on the basis that he “definitively has no credibility”. The RPD
noted unexplained contradictions and misrepresentations in his testimony, some
of which he has continued to rely on for purposes of this motion. A claimant
cannot lie to or mislead immigration authorities and this Court and expect to
receive the exceptional remedy of a stay. On these facts, the balance of
convenience favours the Respondent.
[8]
Finally, I
observe the conduct of the Applicant’s counsel in this matter.
Mr. Istvanffy failed to include a copy of the underlying H&C decision
in the motion record, only producing the decision when his motion was initially
dismissed for the failure to file a complete motion record. A lengthy list of
authorities was provided to the Court and the Respondent only one hour prior to
the hearing, thereby prejudicing the Respondent. In addition to omitting the
underlying decision, the motion record also did not contain other relevant
materials, such as the negative RPD and PRRA decisions. Mr. Istvanffy has had
numerous warnings from other judges of the Federal Court about his practices which
show a blatant disregard for the Court and the code of professional ethics by
which he is bound. The behaviour of the counsel is serious enough that this
Court could have refused to hear the motion on its merits. Such behaviour by
counsel will not be tolerated in the future.
ORDER
THIS COURT ORDERS that:
1.
The style
of cause is amended to add the Minister of Public Safety and Emergency
Preparedness as a Respondent; and
2.
The motion
is dismissed.
“Judith A. Snider”
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