Date: 20080827
Docket: IMM-3486-08
Citation: 2008
FC 973
Toronto, Ontario, August 27, 2008
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
OSAZEE DONALD ENABULELE
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondents
REASONS FOR ORDER AND ORDER
[1]
In this
motion, Mr. Enabulele seeks a stay of his Pre-Removal Risk Assessment pending
final determination on his application for leave and judicial review of a
decision of an Enforcement officer not to defer the process until his
application for permanent residence under the Spouse or Common-law partner in
Canada Class (IP 8) had been determined. It comes about in this way.
[2]
A person
whose claim for refugee protection is dismissed by the Immigration and Refugee
Board is entitled to ask for a Pre-Removal Risk Assessment (PRRA) in accordance
with s.112 and following of the Immigration and Refugee Protection Act.
[3]
In
accordance with the Regulations, an Enforcement officer with the Greater
Toronto Enforcement Centre met with Mr. Enabulele on July 25th of
this year to inform him that he was subject to an enforceable removal order back
to Nigeria and that he was eligible to
apply for a PRRA. He gave him a letter and other documents which provided that
if he wished to apply, he had to complete the attached form by August 8th
and that he was entitled to follow that up with written submissions by August
23rd. On the other hand, if he did not wish to submit a PRRA
application he was asked to return and enclose the “statement of no intention”.
He has done neither.
[4]
Rather, Mr.
Enabulele protested that he was not removal ready. He had married a Canadian citizen
and an application for permanent residence from within Canada, pursuant to the Minister’s policy
enunciated in IP 8 “Spouse or Common-law partner in Canada Class”, was pending.
It was pointed out to him that, nevertheless, he was not entitled to an administrative
deferral of removal. The policy clearly states that a deferral would not be
granted to applicants who “have charges pending or in those cases where charges
have been laid but dropped by the Crown, if these charges were dropped to
effect a removal order.” Charges have been laid against him.
[5]
Within the
15-day delay above mentioned, Mr. Enabulele’s counsel asked the Enforcement
officer to stay the PRRA process pending the outcome of the application under
the Spouse or Common-law partner in Canada Class. He refused. Consequently, an
application for leave and judicial review of that decision was filed the very
same day. The Minister has appeared. The delays for Mr. Enabulele to perfect
his record, and then for the Minister to reply have not expired.
[6]
In the
interim, Mr. Enabulele seeks an order staying the PRRA process until final disposition
of his application for leave and judicial review. He alleges that the policy,
which lumps him together with those who have been convicted of serious criminality
and crimes against humanity, runs counter to his Charter rights, more
particularly the presumption of innocence.
[7]
Mr.
Enabulele is concerned that: a) the PRRA may well be negative and decided
before his application for permanent residence is determined, and b) before his
trial currently scheduled for next February; and c) the Crown will then drop
the charges and remove him. Indeed, the Minister’s policy, if these charges
were dropped to effect a removal order, contemplates that very possibility.
Analysis
[8]
The
applicable tri-partite test for an interlocutory stay as set out in such cases
as RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 is well known. There
must be a serious underlying issue, irreparable harm, and the balance of
convenience must favour the applicant.
[9]
The
threshold on the serious issue is quite low. It must be neither frivolous nor
vexatious. I am satisfied that Mr. Enabulele’s motion meets that test.
[10]
However,
he will not suffer irreparable harm if the stay is not granted. In fact, at
this stage of the proceedings, he has suffered no harm at all. He has not been
issued a departure date. He may, or may not, have created some difficulty for
himself by not filing the PRRA application within time, but in any event, if it
is determined he has waived the PRRA, he is automatically entitled under the
administrative policy in IP8 to a deferral of removal for 60 days.
[11]
It would
be outright speculation to set out a timetable as to when decisions may be made
on his application for leave and for judicial review, on the PRRA, on his
spousal application, and as to whether there will be a trial on his criminal
charges, or the result of any of them.
[12]
Consequently,
the motion must be dismissed, without prejudice to a further motion for a stay
if, as and when circumstances change.
ORDER
UPON MOTION for an Order staying a Pre-Removal Risk Assessment until the applicant’s
application for leave and for judicial review with respect to his challenge to
the public policy respecting spousal sponsorship applications from within Canada is determined;
THIS COURT ORDERS that:
1.
The motion
is dismissed.
2.
The style
of cause is amended to add the Minister of Citizenship and Immigration as a
respondent.
“Sean Harrington”
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