Date:
20130305
Docket:
IMM-1530-13
Citation:
2013 FC 220
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec,
March 5, 2013
PRESENT:
The Honourable Mr. Justice Roy
BETWEEN:
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AMATH DIOUF
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Applicant
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and
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THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR
ORDER AND ORDER
[1]
The
applicant, Amath Diouf, filed a motion for a stay of the deportation order scheduled
for March 9, 2013.
[2]
To
obtain this stay, the applicant must satisfy the Court that a serious question
is to be argued, that the stay is necessary to prevent irreparable harm to him
and that the balance of convenience is in his favour (RJR - Macdonald Inc v
Canada (Attorney General), [1994] 1 S.C.R. 311; Toth v Canada
(Minister of Employment and Immigration) (1988), 86 N.R. 302 (FCA)).
[3]
The
facts of this matter, for the purposes of the motion for a stay, may be
summarized as follows:
a. The
applicant arrived in Canada on January 24, 2006, holding a valid study
permit;
b. The
applicant was married on April 13, 2007, to a Canadian citizen. An
application for his permanent residence was filed in 2007 by the applicant’s
spouse;
c. The
said application for permanent residence was refused on December 7, 2009.
An appeal from this refusal was brought on January 27, 2010, but the
applicant’s spouse discontinued her appeal later in 2010;
d. The
applicant claimed refugee status on June 6, 2011; his application was
rejected on August 24, 2012, the very day that the application was heard,
and no judicial review of this decision was requested;
e. The
applicant has been involved in divorce proceedings since November 17,
2011. He alleged that issues may have to be argued pertaining to the partition
of family patrimony. Counsel for the applicant also noted in his letter of
February 21, 2013, at the Canada Border Services Agency, through which he
requested a stay of the removal order, [Translation]
“Mr. Diouf is entitled to request support from Ms. Diouf”.
[4]
The
motion for a stay was filed on February 21, 2013, following the decision
of February 13, 2013, to set the removal date to March 9, 2013.
[5]
The
applicant made two arguments in support of his motion for a stay. First, he
states that he fears for his life if he returns to Senegal. This is the essence
of the argument made for the refugee claim, which was rejected in court on
August 24, 2012. The motion for a stay is not for the purpose of appealing
a refugee status decision: the application for judicial review is the
appropriate remedy. Therefore, it is easy to rule on this argument.
[6]
The
second argument can be summarized by a request to stay in Canada to complete the divorce proceedings initiated 15 months ago.
[7]
A
law enforcement officer gave the reasons for which he refused to stay the
removal order scheduled for March 9, 2013, in a document dated
February 27, 2013. The enforcement officer found [Translation] “that there is no obstacle to removal”. Noting
his limited power to intervene, he pointed out subsection 48(2) of the Immigration
and Refugee Protection Act and stated that the [Translation] “removal would not cause
him irreparable harm”. In fact, the law enforcement officer had stated that the
applicant may put forward his arguments with respect to his divorce case after
his removal from Canada.
[8]
The
applicant argued in this Court that the law enforcement officer’s decision was
unreasonable. The serious question relates to the need to challenge the grounds
for divorce and the relief corollary to divorce (partition of patrimony and a
right to request support); the applicant claimed that the law enforcement
officer breached the principle of natural justice, allegedly because he refused
to use his discretion to defer removal. It is alleged that the officer had not
correctly assessed the evidence.
[9]
I
would reject the motion for a stay on this basis alone from this Court. The
applicant failed to persuade me that there is a serious question that may
entitle him to a stay. The applicant stated in his affidavit that he should
stay in Canada to [Translation]
“to allow me to settle my divorce according the law”, affidavit of
February 26, 2013, paragraph 27). The Court does not see how the law
enforcement officer could have failed to observe a principle of natural justice
(Wang v Canada (Minister of Citizenship and Immigration), [2001]
3 FC 682). In addition, the reasons given by the officer with respect to
his limited discretion, satisfy the requirements in Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador, [2011] 3 S.C.R. 708,
specifically paragraphs 14 to 16.
[10]
But
there is more. Neither the criteria of irreparable harm nor the balance of
convenience are in the applicant’s favour. Further, it is the applicant’s burden
to persuade the Court of these.
[11]
The
applicant would like the Court to decide that the inconvenience of not being in
Canada to attend divorce proceedings would become an irreparable harm. With
respect, there would have to have been a stronger demonstration from the
applicant with supporting evidence to show irreparable harm. The vague statement
alone is not sufficient.
[12]
It
then follows that the balance of convenience is not in the applicant’s favour.
The Act provides that the removal order be relatively expeditious
(section 48). The public interest in the removal taking place to maintain
the integrity of the system (Membreno-Garcia v Canada (Minister of
Employment and Immigration, [1992] 3 FC 306) also prevails when there is no
serious question or irreparable harm.
[13]
Accordingly,
the application to stay the removal order scheduled for March 9, 2013, is
dismissed.
ORDER
THE
COURT ORDERS that the application to stay the removal
order scheduled for March 9, 2013, is dismissed.
“Yvan Roy”
Certified true
translation
Catherine Jones,
Translator
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