Date: 20080717
Docket: IMM-2758-08
Citation: 2008 FC 879
BETWEEN:
CHUKS
NWAWULOR EBONKA
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR
ORDER
FRENETTE D.J.
[1]
This
motion is for an order staying the execution of a removal order against the
applicant to Nigeria scheduled
for July 10, 2008. I grant the stay for the following reasons.
I. The facts and the
proceedings
[2]
The
applicant is a citizen of Nigeria who fled his country
and sought refuge in Germany in 2003. That refugee
claim was rejected. He arrived in Canada on March 13, 2005 and
filed a claim for refugee protection. His claim was heard before a panel of the
Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB) on
August 31, 2005. His claim was dismissed on October 26, 2005.
[3]
He
applied for leave for judicial review of the IRB decision on November 21, 2005;
leave was refused on March 15, 2006. He submitted a spousal sponsorship
application in July 2006. He applied for a Pre-Removal Risk Assessment (PRRA)
hearing and by decision dated April 28, 2008, it was held to be negative. A
humanitarian and compassionate (H&C) application was dismissed on April 30,
2008.
[4]
The
evidence revealed that the applicant married Carlene Paula Wray in Canada on July 16,
2006. She had given birth to a child, Jamar, on May 27, 2006, whose biological
father was a former boyfriend.
[5]
The
applicant was employed until March 27, 2006, when he was struck by a pick-up
truck and was seriously injured. Since then, he cannot do heavy work and lost
his job. He follows medical treatments and physiotherapy.
II. The impugned
decision
[6]
The
officer, N. Case, was the same person who considered the PRRA. The applicant
sought an exemption from the in-Canada selection criteria based on H&C grounds
to facilitate processing his application for permanent residence within Canada. The officer
decided that the issues raised by the applicant could be resolved outside Canada and that he
would not experience “unusual, underserved or disproportionate hardship if compelled
to apply in the normal manner”.
III. The test for
granting a stay of removal
[7]
The test
for granting a stay is whether:
a) A serious issue exists to be
tried;
b) Irreparable harm will be
caused if the stay is not granted; and
c) The balance of convenience
favours the applicant.
See Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302, 6 Imm.
L.R. (2d) 123 (F.C.A.). All of these conditions must be met in order to grant a
stay.
a) Serious issue
[8]
The
applicant submits that the test for this subject is a “very low threshold” and
that it has been met here (Oberlander v. Canada (Attorney
General),
2003 FCA 134, 303 N.R. 104).
[9]
The
applicant claims the officer made a reviewable error by relying on the findings
of the RPD and PRRA as a basis for his H&C application as the test is not
one of risk but is to be based on section 25 of the Immigration and Refugee
Protection Act, ( 2001, c. 27 ) (IRPA):
|
Humanitarian
and compassionate considerations
25.
(1) The
Minister shall, upon request of a foreign national who is inadmissible or who
does not meet the requirements of this Act, and may, on the Minister’s own
initiative, examine the circumstances concerning the foreign national and may
grant the foreign national permanent resident status or an exemption from any
applicable criteria or obligation of this Act if the Minister is of the
opinion that it is justified by humanitarian and compassionate considerations
relating to them, taking into account the best interests of a child directly
affected, or by public policy considerations.
Provincial
criteria
(2) The Minister may not grant
permanent resident status to a foreign national referred to in subsection
9(1) if the foreign national does not meet the province’s selection criteria
applicable to that foreign national.
|
Séjour
pour motif d’ordre humanitaire
25.
(1) Le
ministre doit, sur demande d’un étranger interdit de territoire ou qui ne se
conforme pas à la présente loi, et peut, de sa propre initiative, étudier le
cas de cet étranger et peut lui octroyer le statut de résident permanent ou
lever tout ou partie des critères et obligations applicables, s’il estime que
des circonstances d’ordre humanitaire relatives à l’étranger — compte tenu de
l’intérêt supérieur de l’enfant directement touché — ou l’intérêt public le
justifient.
Critères
provinciaux
(2) Le statut ne peut toutefois être
octroyé à l’étranger visé au paragraphe 9(1) qui ne répond pas aux critères
de sélection de la province en cause qui lui sont applicables.
|
[10]
The
applicant alleges that the officer ignored the catastrophic financial consequences
that would result from his removal from Canada. His injuries prevent him from being gainfully employed
and presently he receives compensation from an insurance company which has admitted
its liability resulting from the accident. He was advised that if he leaves Canada this income replacement
will be terminated.
[11]
He
produced a letter from his personal injury lawyer, Ms. Karoly, who believes that
he has a strong injury claim but that if he leaves Canada, it would be difficult
if not impossible to pursue this claim. He alleges that he could not work in Nigeria and could not receive
adequate medical treatment there.
[12]
The
respondent replied that these facts were considered by the officer but that the
applicant had not met the high threshold required when requesting an exemption
from the application of section 11(1) of the IRPA, quoting Irimie v.
Canada (Minister of Citizenship and Immigration) (2000), 10 Imm. L.R. (3d)
206, 101 A.C.W.S. (3d) 995 (F.C.T.D.).
[13]
The
applicant alleges that the H&C officer’s comments centered on risk if
returned to Nigeria while it should have invoked the test as to whether he
would have “unusual, underserved or disproportionate hardships”, if returned to
Nigeria.
[14]
The
respondent answers that the applicant had not provided sufficient objective
evidence to support this claim.
[15]
The
applicant described the situation in Nigeria when he left and the fact that his brother was
killed.
[16]
The
documentation about Nigeria which was before the officer, particularly the U.S.
Department of State publication “Country Reports on Human Rights Practices –
2007”, reveals an appalling situation where political violence is rampant and
where the national police, army and security forces commit extrajudicial
killings, e.g.: “The Joint Task Force (JTF) conducted raids on militant
groups in the Niger Delta region, resulting in numerous deaths and injuries”.
[17]
The
Niger Delta Region is the area where the applicant resided and to which he would
be returned.
i. The best interest of
the child
[18]
The
applicant submits that the H&C officer did not consider the best interests
of the child directly affected, being his stepson Jamar. The respondent replied
that the child was not mentioned in the documents and no evidence to support
the applicant’s position on his stepson’s best interests was even produced.
Therefore this is a non issue.
IV. Analysis
[19]
An
analysis of all the facts and the above submissions reveal that there are
serious issues that require further examination in this case.
b) Irreparable
harm
[20]
The
applicant alleges he would suffer irreparable harm if he was removed from Canada.
[21]
Not
only would his “new family” be separated but he would lose all the financial
benefits and compensation resulting from his accident and his ability to obtain
employment in the future. In Nigeria, he could not generate an income and would neither obtain
the medical treatments his injuries require nor be safe.
[22]
The
respondent answers that “irreparable harm” is a strict test and requires harm
beyond the usual inconveniences of removal from Canada (Kouchek v. Canada (Minister of
Citizenship and Immigration) (1995), 53 A.C.W.S. (3d) 1049, [1995] F.C.J. No.
323 (F.C.T.D.) (QL).
[23]
An
analysis of these submissions and the facts established, there is no doubt that
the applicant would suffer “irreparable harm” if removed; well beyond the
normal inconveniences.
c) Balance of
convenience
[24]
The
balance of convenience is an assessment of which party would suffer the most
from a removal or a deportation.
[25]
There
is no doubt that the respondent has an interest and a duty in seeing to the
timely and effective execution of a removal order (Membreno-Garcia v. Canada (Minister of
Citizenship and Immigration), [1992] 3 F.C. 306, 55 F.T.R. 104 (F.C.T.D.).
[26]
However,
I believe the balance of convenience favors the applicant who besides the well-being
of his family has a lot to lose as far as employment and compensation arising
from the litigation resulting from his accident.
[27]
The
conditions for a stay have been met.
[28]
Wherefore,
the Court grants the application for a stay of execution until:
a. the disposition of the
leave applications; and
b. if leave is granted,
until such time as section 18 and 18.1 applications are disposed of by this
Court.
"Orville
Frenette"
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