Date: 19990208
Docket: IMM-5336-98
BETWEEN:
CHIKE OSAKWE NNAEMEKA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is a motion to stay the removal of the applicant to Nigeria scheduled for February 8, 1999, pursuant to a deportation order made against the applicant April 14, 1994.
[2] This is a last minute application. A decision rejecting an humanitarian and compassionate application was rendered September 23, 1998.
[3] The applicant was advised on January 20, 1999 that his removal from Canada would take place on February 8, 1999;
Tri-Partite Test:
A - Serious Issue
[4] I have carefully reviewed the arguments raised by the applicant on this point.
[5] The applicant has not convinced me that there is an arguable case in the reasons given for refusing the applicant's application for exemption under section 114(2) of the Immigration Act.
[6] The applicant has not convinced me that the respondent errs in law where she relies on past negative determinations of other applications submitted by the applicant.
[7] I have reviewed the memorandum written by A. Connors to R. Heisler dated September 23, 1998, filed as exhibit "G" referred to in the affidavit of Chike Osakwe Nnaemeka, the applicant, and I cannot see where and when the respondent has erred in law in making that decision.
[8] The applicant has not demonstrated that immigration officer Connors committed any reviewable error in the exercise of her discretion not to recommend the exercise of favourable discretion under section 114(2) of the Immigration Act, so I conclude there is no serious issue raised by the applicant within this application;
B - Irreparable Harm
[9] I have also reviewed the evidence before the Court relating to the situation in Nigeria.
[10] The applicant did not succeed in demonstrating the he would suffer irreparable harm by being removed to Nigeria.
[11] I am not convinced that the applicant would face a serious likelihood of detention and torture if deported to Nigeria, particularly since last summer when political changes took place there.
[12] I have also to reject the argument that the applicant's removal from Canada will result in a defacto frustration of his application for judicial review. As it has been decided by Mr. Justice Strayer in Shchelkanov v. Canada (MEI) (1994), 76 F.T.R. 151 (F.C.T.D.) Strayer, J.:
| ...it will still be just as possible for a judge of this court to review the leave application on the file pursuant to the rules, even though the applicant is back in the former Soviet Union. If leave is granted it will be possible for the application for judicial review to be heard, such hearings being based on affidavit evidence and the applicant herein having already deposed an affidavit. |
[13] The two parties have filed more recent evidence about the situation in Nigeria. I have particularly reviewed a letter signed by Chidi Anselm Odinkalu, Senior Legal Officer for INTERIGHTS, which letter was written on Sunday, February 7, 1999 and sent to counsel for the applicant.
[14] I have to weigh Mr. Odinkalu's opinion against the most recent information on the treatment of Nigerians who have returned to the country after having made unsuccessful application for refugee status abroad, and particularly the report from Germany's Federal Office for the Recognition of Foreign Refugees reported on December 8, 1998. The applicant fails to convince me that he will suffer irreparable harm by being removed to Nigeria.
| C - Balance of Convenience |
[15] It is not necessary for me to consider the third element of the test, which is the balance of convenience.
[16] For the foregoing reasons, the applicant's motion for a stay is dismissed.
| "Pierre Blais" |
| Judge |
| Toronto, Ontario |
| February 8, 1999 |
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-5336-98
| STYLE OF CAUSE: CHIKE OSAKWE NNAEMEKA |
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
DATE OF HEARING: MONDAY, FEBRUARY 8, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: BLAIS J.
DATED: MONDAY, FEBRUARY 8, 1999
APPEARANCES: Ms. Catherine Bruce
For the Applicant
Mr. Stephen Gold
For the Respondent
SOLICITORS OF RECORD: Catherine Bruce
| Barrister & Solicitor |
1670 Bayview Avenue,
Suite 402
| Toronto, Ontario |
| M4G 3C2 |
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
| For the Respondent |
| FEDERAL COURT OF CANADA |
| Date: 19990208 |
| Docket: IMM-5336-98 |
| Between: |
| CHIKE OSAKWE NNAEMEKA |
| Applicant |
| - and - |
| THE MINISTER OF CITIZENSHIP |
| AND IMMIGRATION |
| Respondent |
| REASONS FOR ORDER AND ORDER |