Date: 20020128
Docket: IMM-163-02
Neutral citation: 2002 FCT 103
BETWEEN:
AFOLABI SAIBU
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION CANADA
Respondent
[1] The Applicant seeks an order staying the execution of the deportation order made against him. He is scheduled to be removed on January 29, 2002 to Nigeria.
[2] The Applicant arrived in Canada in September 1999 and claimed refugee status. On March 8, 2001, the Refugee Board denied his claim, primarily on the ground that his testimony lacked credibility. The Applicant then filed an application for leave and for judicial review of the Refugee Board's decision.
[3] On April 14, 2001, the Applicant married a Canadian citizen. On July 12, 2001, he filed an application for permanent residence on humanitarian and compassionate grounds pursuant to ss. 114(2) of the Immigration Act.
[4] On October 9, 2001, Blanchard J. dismissed his application for leave and judicial review of the Refugee Board's decision. Hence, the conditional deportation order made against the Applicant, following his arrival in Canada, became enforceable.
[5] In December 2001 and January 2002, the Applicant met with a removal officer who refused to defer his removal until such time as his H & C application had been disposed of.
[6] The Applicant submits that he is entitled to a stay of execution until a decision has been rendered in respect of his H & C application. He submits, as he must, that if I do not grant him a stay, he will suffer irreparable harm. He further submits that his application for leave and for judicial review raises a serious issue.
[7] I should point out the Applicant's underlying leave application is a challenge of the removal officer's decision not to defer his removal until the H & C application is decided. The Applicant is not seeking an order of mandamus regarding the H & C application.
[8] Unfortunately for the Applicant, I have concluded that his motion must be dismissed. Firstly, I am of the view that the judicial review application does not raise a serious issue. As I have just indicated, there is no challenge concerning the humanitarian and compassionate matter, i.e. the Applicant is not seeking a mandamus. The Applicant therefore cannot raise "delay" as an issue without challenging the Minister's tardiness in rendering a decision.
[9] Further, a number of decisions rendered by judges of this Court have held that the Minister is not under any obligation to decide an H & C application prior to removal of the Applicant from Canada. In Vakiriak v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1682, Court No. IMM-4963-01, decision rendered November 5, 2001, Mc.Keown J. made the following remarks at page 2 of his reasons:
[para 6] Furthermore, it has been held by this Court consistently that there is no obligation upon the respondent to consider an H & C application prior to removing a person unlawfully in Canada and that such an application in and of itself does not operate to bar his or her removal from Canada. See: Mortimore v. Minister of Citizenship and Immigration, IMM-3143-00.
[para7] In the case before me the applicant only filed an H & C application in June 2001. His application will continue to be processed after he returns to the Ukraine. Moreover, it is plain and obvious that the applicant's decision to get married on October 27, 2001 is in response to the respondent's intention to remove him. To adopt the words of Rouleau J. in Banwait v. M.C.I., [1998] F.C.J. No. 522, IMM-1259-98:
I see no transgressions in the conduct of the Minister; no expectations granted the applicant; if he chose to marry while still not having his situation favourably determined by Canadian authorities, it is at his peril, not that of the Minister who has a duty to uphold the laws of Canada.
[para8] The motion for a stay is denied.
The fact that the Applicant is married to a Canadian citizen does not, in and of itself, help the Applicant.
[10] Secondly, I have not been convinced that denying the Applicant a stay, will result in irreparable harm. The fact that the Applicant's wife will suffer from their separation, does not constitute irreparable harm. In Ram v. M.C.I. (IMM-1939-96, decision of June 21, 1996) MacKay J. stated at page 2 of his reasons:
In addition to the lack of a serious question before the Court from the application for leave and for judicial review, I am also not satisfied in this case that the applicant has established irreparable harm, another essential requirement for a stay. I do appreciate that members of his family anticipate suffering quite serious dislocation and emotional stress, in particular his wife and her family. I appreciate that removal may cause dislocation and some psychological difficulties for Mr. Ram himself, but everyone who is required, against his or her will, to leave Canada when he or she has no right to remain in this country faces similar difficulties. I am not persuaded that those are special circumstances that constitute irreparable harm.
[11] With respect to the Applicant's argument that he will suffer irreparable harm if forced to return to Nigeria, the evidence does not support him. The Refugee Board concluded against the Applicant on his refugee claim and his leave application to this Court was dismissed. In his affidavit, the Applicant puts forth the story which was before the Refugee Board. That story, as I have already indicated, was found not to be credible. Hence, it cannot serve here as a basis for an argument supporting irreparable harm. In Hussain v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 751, IMM-5423-99, decision May 31, 2000, I concluded as follows at paragraphs 12 of my reasons:
[para12] I should note that before Mr. St. Vincent on their H & C application, the Applicants proceeded on the basis that Mr. Hussain was a member of the MQM, notwithstanding the clear findings made by the Refugee Board and by the PDRCC Officer to the contrary. The Applicants seem to be of the view that if they continue to add documents to the record, the credibility findings of the Refugee Board are somehow going to be "reversed" or "forgotten". In my view, that is a mistaken view because the officer who hears an H & C application does not sit in appeal or review of either the Refugee Board or the PDRCC Officer's decision. Thus, on the H & C application, Mr. St. Vincent could not proceed on the basis that Mr. Hussain was an MQM member, given the Refugee Board's findings in that respect. In short, the purpose of the H & C application is not to re-argue the facts which were originally before the Refugee Board, or to do indirectly what cannot be done directly - i.e., contest the findings of the Refugee Board.
[12] Finally, I am satisfied that the balance of convenience favors the Minister.
[13] For these reasons, this motion for a stay of execution of the deportation order is dismissed.
Marc Nadon
Judge
Montreal, Quebec
January 28, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-163-02
STYLE OF CAUSE:AFOLABI SAIBU
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION CANADA
Respondent
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: January 28, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE NADON
DATED: January 28, 2002
APPEARANCES:
Mr. Harry Blank FOR APPLICANT
Ms. Jocelyne Murphy FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Harry Blank
Montreal, Quebec FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Montreal, Quebec FOR RESPONDENT