Date: 20081103
Docket: IMM-3642-08
Citation: 2008 FC 1224
Montréal, Quebec, November 3, 2008
Present: The Honourable
Orville Frenette
BETWEEN:
Victor Aimé
KOUKA
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
and
MINISTER OF PUBLIC
SAFETY
AND EMERGENCY
PREPAREDNESS
Respondents
REASONS FOR
ORDER AND ORDER
[1]
This is a motion to stay the enforcement of a deportation
order issued against the applicant, scheduled for November 3, 2008 at 6:30 p.m.
[2]
The applicant, a citizen of the Democratic
Republic of the Congo, was born in 1953.
[3]
He arrived in Canada on March 13, 2003, to visit his three children who have been living in Canada since 1998 (children now 25 to 30 years of age).
[4]
On June 18, 2003, the applicant applied for refugee
protection, which was refused on December 30, 2003.
[5]
The applicant filed an application for judicial review of the
above-mentioned decision, which was allowed on January 28, 2004, but the application was
dismissed after the rehearing.
[6]
On May 5, 2004, he filed an application for permanent
residence which was refused in a decision dated October 18, 2006.
[7]
The applicant then filed an application for judicial review
against this decision, an application which was dismissed on March 1, 2007.
[8]
On April 13, 2007, the applicant availed himself of a
pre-removal risk assessment (PRRA) and on May 16, 2007, he filed a
second permanent residence application based on humanitarian and compassionate considerations.
Both of these most recent applications were heard by the same officer, i.e. Patricia
Rousseau, who refused both applications on July 31, 2008.
[9]
The applicant then filed an application for judicial
review against both of these decisions.
[10]
The applicant is seeking this stay so that he can proceed
with this last proceeding in Canada. He alleges that the officer who made the decision breached her
obligations of fairness toward him in failing to ask him for information and
documents that were missing in his initial application.
[11]
It is understood that the applicant can file his application
for judicial review from outside Canada.
[12]
It is also well settled in law that the applicant has the
responsibility of providing all of the documents and information relevant to
his application.
[13]
Toth v. Canada (Minister of Employment and Immigration)
(1988), 86 N.R. 302 (F.C.A.), sets out the three requirements for a judicial
stay:
1.
The existence of a serious issue;
2.
Irreparable harm; and
3.
The assessment of the balance of convenience.
[14]
An analysis of the applicant’s arguments indicates that he
availed himself of every available recourse to assert his arguments to date.
[15]
In reality, there is no serious issue to debate at this
stage, a second application for permanent residence based on humanitarian and
compassionate considerations.
[16]
In regard to the alleged harm, it is the same as that
suffered by all those who are subject to a removal order.
[17]
Accordingly, as the conditions required by Toth
have not been respected, this motion to stay cannot be allowed.
[18]
For these reasons, the Court orders that the motion to stay
the removal order be dismissed.
ORDER
The motion to stay
the enforcement of the deportation order issued against the applicant,
scheduled for November 3, 2008, is dismissed.
“Orville
Frenette”
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3642-08
STYLE OF CAUSE: Victor Aimé KOUKA v. MINISTER
OF CITIZENSHIP AND IMMIGRATION ET AL
PLACE
OF HEARING: Montréal,
Quebec
DATE
OF HEARING: November 3, 2008
REASONS
FOR ORDER
AND
ORDER: FRENETTE
D.J.
DATE
OF REASONS: November 3, 2008
APPEARANCES:
Luc R. Desmarais FOR
THE APPLICANT
Patricia Noble FOR
THE RESPONDENTS
COUNSEL
OF RECORD:
Luc
R. Desmarais FOR THE
APPLICANT
Montréal,
Quebec
John
H. Sims, Q.C. FOR THE
RESPONDENTS
Deputy
Attorney General of Canada
Montréal, Quebec
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