Date: 20000705
Docket: IMM-3390-00
BETWEEN:
GRACE OGBEIFUN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.:
[1] These reasons explain my granting, on Friday June 30, 2000, a stay of the execution of a removal order pending the hearing of the underlying application for leave and judicial review. The matter came on for hearing on an urgent basis with the removal scheduled for Sunday, July 2, 2000.
BACKGROUND
[2] The applicant is Grace Ogbeifun, a citizen of Nigeria who came to Canada on March 25, 1990, and made an unsuccessful refugee claim which was denied by the Refugee Division on September 21, 1994, with this Court later refusing leave to extend time to file an application for leave and judicial review.
[3] The record reveals a number of other unsuccessful attempts by the applicant to remain in Canada. For example, on July 26, 1995, the applicant was refused under the PDRCC program; on November 21, 1995, she made an application for landing under the independent class which was refused on March 12, 1996; she made a second application for landing under the independent class which was again refused, this time on March 4, 1997. Furthermore, on May 5, 1999, the applicant was refused under the DROC program because in September 1998, she had been convicted of criminal offences relating to obstructing police and possession of stolen credit cards.
[4] In June 1999, the applicant made a request for permanent residence in Canada seeking an exemption to permit in Canada processing on humanitarian and compassionate grounds. The applicant has two Canadian born children age 9 and 7 respectively.
[5] On August 10, 1999, the applicant received a letter from Citizenship and Immigration Canada ("CIC") indicating that her application for permanent residence had been transferred from Mississauga to the Scarborough Canada Immigration Centre for further consideration. That letter stated "[Y]ou will be advised by this office within twelve months of the disposition of your case". This application remains outstanding.
[6] On June 14, 2000, the Greater Toronto Enforcement Centre of CIC mailed a direction to report to the applicant indicating that her removal from Canada had been scheduled for Sunday, July 2, 2000. The applicant, in her affidavit in support of this stay motion, indicates she received the direction to report on June 21, 2000.
[7] On June 28, 2000, the applicant retained legal counsel. It was explained to me that between June 22 and June 27, the applicant had contacted the immigration agent who had prepared her H & C application and it was only then that she realized this person could not make any representations before the Court because he was not a lawyer.
[8] The record shows that on June 28, 2000, the applicant"s legal counsel contacted the Removals Officer and suggested to her that the applicant"s removal be postponed. He advanced three arguments to convince the enforcement officer: (1) the outstanding H & C application which was about a year old; (2) the expired Canadian passports of her children; and (3) the fact a PCDO risk assessment had not been made.
[9] On June 29, 2000, the applicant filed an application for leave and for judicial review. That leave and judicial review application invoking lack of procedural fairness attacks the decision of the enforcement officer.
ANALYSIS
| (a) Serious issue |
[10] I am satisfied this application raises a number of serious issues:
| (1) The first serious question is whether, in the circumstances of this case, there was a breach of procedural fairness in that the applicant was advised to report for deportation by mail and without the usual call-in interview at which time a person under deportation is informed by CIC the removal will be executed. At such interview, the affected person may raise issues related to the timing of the deportation. Here, if an interview had been held, the issue of the children"s expired Canadian passports could have been dealt with. |
| (2) The second serious issue relates to whether CIC breached an internal policy of giving a person at least fourteen (14) days notice before the date of deportation. Counsel for the applicant mentioned the existence of this policy. |
| (3) The third serious issue relates to the outstanding H & C application and the fact that it has remained outstanding for almost a year. The Court raised with counsel for the respondent a policy in some other provinces not to remove persons whose H & C application has been outstanding for over six months. Counsel for the respondent told me no such policy existed in Ontario. Quite apart from an issue of uneven administration of deportation orders throughout Canada, the facts, in this case, raise an issue of undue delay in processing her H & C application. |
| (4) Fourth, there is a serious issue concerning the requirement for a more up-to-date risk assessment (taking into account the fact her husband who she says abused her now lives in Nigeria). The enforcement officer only gave counsel for the applicant a very short period of time to provide input as to why the applicant objectively feared involuntarily being returned to Nigeria. |
| (b) Irreparable harm and balance of convenience |
[11] The applicant fears being returned to Nigeria and there has been no current assessment of the risks related to her fear. In addition, she would have been deported without her young children whose passports are expired. These two factors alone persuaded me the applicant would suffer irreparable harm. As to balance of inconvenience, this is a determination of which of the two parties will suffer greater harm from the granting or refusal of the stay. I have taken into account the public interest which the Minister has in administering the law. In the circumstances, the balance of convenience favoured the applicant notwithstanding, as counsel for the respondent noted, there was a lack of evidence from the applicant who she really was, how she was established in Canada and whether she had family here.
[12] For all of these reasons, the stay requested was granted until the disposition of the applicant"s leave and judicial review application.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
JULY 5, 2000