Date:
20130605
Docket:
IMM-3748-13
Citation:
2013 FC 607
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario,
June 5, 2013
PRESENT:
The Honourable Mr. Justice Shore
BETWEEN:
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ADE SHAKIRU DOSUNMU
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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 is seeking a stay of the removal order against him.
[2]
The
removal of the applicant, Ade Shakiru Dosunmu, to Nigeria is scheduled for
Tuesday, June 11, 2013, at 3:00 p.m.
[3]
According
to the test in Toth v Canada (Minister of Employment and Immigration) (1988),
86 NR 302 (FCA), the applicant must demonstrate that the three conjunctive
requirements exist: a serious issue to be argued in an application for leave
and judicial review; a risk of irreparable harm; and a balance on convenience
in his or her favour.
[4]
Upon
his arrival in Canada the applicant was in possession of forged documents when
Canadian customs officers found him hiding in an airport washroom. He claimed
that he was a citizen of the Netherlands and that he faced a risk in that
country; he also indicated that he feared returning to Nigeria.
[5]
Since
he arrived in Canada the applicant has committed criminal offences; and,
following these offences, he has reoffended. Furthermore, he has shown a
penchant for abuse of process by lying to Canadian immigration authorities.
[6]
The
applicant failed to appear at the airport as agreed, claiming that his spouse
was in hospital and that he had to take care of his baby; however, after his
detention, his spouse arrived to take her baby.
[7]
Before
the Refugee Protection Division (RPD), the applicant was found to have shown a
flagrant lack of credibility, having changed his version of the facts several
times; thus, his claim was deemed to have no credible basis. The RPD even noted
that “[s]ince the claimant arrived in Canada, he kept changing his
version of the facts of his claim, often as a result of the irrefutable proof
of the falseness of his statements” (at para 43).
[8]
The
applicant raises no serious issue; the risks alleged in his motion before the
Court were not, for the most part, submitted to the officer.
[9]
The
removals officer, despite the applicant’s past, had already deferred his
removal so he could be with his spouse when she gave birth.
[10]
Little
is known by the immigration authorities about the applicant’s past, other than
the criminal acts he has committed in Canada and to which he pleaded guilty: assault,
section 266 of the Criminal Code of Canada, rendering him inadmissible by
reason of criminality under paragraph 36(2)(a) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (IRPA). The applicant also hid from
the removals officer the fact that he had been charged with breach of conditions
and arrested for fraud, having credit cards under several names on his person.
[11]
The
applicant’s sponsorship application was refused following a decision by
Citizenship and Immigration Canada (CIC) declaring him inadmissible.
[12]
Following
a motion to withdraw his guilty plea, a hearing is scheduled at the Quebec Court
of Appeal for September 20, 2013.
[13]
The
applicant claims that his guilty plea was not a free and informed choice on his
part, given that he was not warned of the impact such a plea would have on his
immigration file in Canada.
[14]
In
addition, the applicant is facing two other charges at the Municipal Court of
Montréal for breach of conditions and obstruction, the trial for which is
scheduled for September 27, 2013. These charges have not been withdrawn.
[15]
These
preliminary factors, in and of themselves, could be determinative of the
applicant’s stay application. The remedy sought by the applicant is a remedy in
equity. The Court has enough evidence to conclude that the applicant does not
come before the Court with “clean hands”. The Court could have decided not to
consider the application on that basis alone; nevertheless, the Court gave
extensive consideration to the stay application (see Federal Court of Appeal in
Moore v Canada (Minister of Citizenship and Immigration), 2001 FC 803).
[16]
The
applicant is essentially basing his stay application on factors that allow him
to remain in Canada while he awaits a decision on his application for permanent
residence on humanitarian and compassionate grounds, and not on any error on
the part of a removals officer.
A. Serious issue
[17]
The
removals officer weighed all of the evidence that was available to him.
[18]
After
having heard the parties by a teleconference call and having considered their
oral and written submissions, and based on all of the evidence in the record,
the Court finds that the applicant has not raised any serious issue.
B. Irreparable
harm
[19]
The
alleged risks raised by the applicant have been assessed and dismissed by both
the Immigration and Refugee Board and by Citizenship and Immigration Canada,
and now also by this Court. The applicant has been found to be completely
lacking in credibility, and his claim to have no credible basis. The
applicant’s allegations can therefore not serve as a basis on which to argue
irreparable harm.
[20]
With
respect to hardship to the family, the Court finds that the evidence entered in
the record does not support the allegations of harm. The evidence is deficient
and cannot serve as an adequate basis on which to grant a stay in order to
prevent irreparable harm being caused.
C. Balance of
convenience
[21]
All
in all, the applicant’s record, given his criminal record and past dealings
with immigration authorities, leads to a balance of convenience that instead
favours the respondent. Subsection 48(2) of the IRPA provides that a removal
order must be enforced as soon as is reasonably practicable.
Conclusion
[22]
For
all of these reasons, the application to stay the removal order is dismissed.
ORDER
THE
COURT ORDERS that the motion for a stay of removal be
dismissed.
“Michel M.J. Shore”
Certified true translation
Sebastian Desbarats, Translator
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