Date: 19990331
Docket: IMM-1430-99
BETWEEN:
FREDERICK OGHENERUMU UMUKORO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX, J.:
[1] The applicant, Mr. Frederick Oghenerumu Umukoro, a citizen of Nigeria, on the 22nd of March, 1999 applied under Section 82.1 of the Immigration Act for leave to commence an application for judicial review of a direction to report dated March 4, 1999 issued to the applicant by Carolyn Moffett, an Enforcement Officer of the respondent.
[2] The direction to report advised the applicant that his removal from Canada has been scheduled for Thursday, April 1, 1999 and directed him to report to the Canada Immigration Centre at Pearson International Airport, Terminal two, that day at 5:00 p.m. for a flight leaving at 7:45 p.m..
[3] The applicant's leave application seeks to set aside "the Immigration Officer's decision to remove the applicant notwithstanding his pending application for landing, and referring the matter back for reconsideration on the merits in accordance with the principles of administrative fairness". The principal ground advanced by the applicant was that the immigration officer fettered her discretion or acted under dictation in arriving at her decision.
[4] The applicant, also on March 22nd, 1999, moved the Court for an order staying the removal of the applicant from Canada until such time as the application for judicial review was dealt with.
[5] I heard the stay application in Toronto on Monday, March 29, 1999 and these are my reasons for dismissing the stay application.
[6] The applicant's stay application was argued on the basis of the three - pronged test of serious issue, irreparable harm and balance of convenience set out in R.J.R. MacDonald Inc. v. Canada (A.G.) (1994) 1 S.C.R. 311 and Toth v. M.E.I. [1989] 1 F.C. 536 (F.C.A.)
Background
[7] The applicant arrived in Canada on December 14, 1996. Because his papers were not in order (no valid passport and no valid immigration visa) and since the applicant immediately made a refugee claim, a conditional departure order was issued against him.
[8] On November 18, 1997, his refugee claim was denied by the Convention Refugee Determination Division ("CRDD") of the Immigration and Refugee Board. I add that neither the applicant's or respondent's counsel put before me the CRDD's decision.
[9] The applicant then sought leave to commence an application for judicial review of the CRDD's decision. Leave was refused on May 15, 1998.
[10] Without being provided with any details, the Court was informed that the applicant made an application for a determination of whether he was a member of the Post-Determination Refugee Claimants in Canada class and that application was not accepted because it was too late.
[11] On September 15, 1998, the applicant submitted to Citizenship and Immigration Canada an in Canada application for permanent residence requesting that his application be processed from within Canada as an exception because of humanitarian and compassionate grounds. His application for permanent residence was sponsored by his cousin.
[12] The applicant gave the following reasons for seeking the exception for within Canada processing treatment:
| I am employed and my employer depends on me. My absence will create job difficulties for my employer. I am already in Canada and I would like any application to be processed in Canada. |
[13] In terms of excessive hardship the applicant would suffer if he had to submit his application at a visa office outside of Canada, he said this:
| I will need a visa to go to another country to submit my application and this will be a problem since I don't have any status in Canada. I have built a close relationship with my cousin and his wife and my departure to my home country Nigeria will lead to emotional hardships on both of us. I have friends in the church and also at work. My departure will lead to unnecessary hardship on me and my friends. |
[14] The applicant's permanent residence application indicates that he was born in Nigeria in 1968, was never married and has no dependents in Canada.
[15] The applicant's application for permanent residence for processing in Canada is pending as of this date.
[16] On January 8, 1999, Carolyn Moffett wrote to the applicant referencing his removal order and advising that an interview was scheduled for Friday, January 22, 1999, to make arrangements for his departure.
[17] The interview took place as scheduled. The legal counsel then representing the applicant was also present at the interview. During the interview, the applicant indicated to Ms. Moffett that he had applied to the Nigerian High Commission in Ottawa for a passport. The record before me exhibits correspondence between Carolyn Moffett and the Nigerian High Commission in respect of the applicant's passport request.
[18] After the applicant received the direction to report dated March 4, 1999, he retained new counsel who on the 16th of March 1999 called Carolyn Moffett who made a note to file which reads:
| Call received this dated from new counsel... requesting deferment of removal April 1, 1999. Client has an H & C sponsorship app by his cousin in progress since Sept. 98. Removal interview/arrangements began January 22nd 99. Counsel advised no deferment. |
[19] The applicant in his affidavit in support of the stay application says that he was advised by his counsel "that Ms. Moffett refused to consider granting an extension of my date for removal despite my having made an application for landing on humanitarian and compassionate grounds."
[20] In a responding affidavit, filed on behalf of the respondent, Kathie Woodcock, an administrative clerk in the Immigration Law Section of the Ontario Regional Office of the Department of Justice says that she was informed by Carolyn Moffett that counsel for the applicant requested that she defer removal of the applicant. Ms. Woodcock says this in her affidavit:
| I am further informed by Ms. Moffett and do believe that she told counsel that deferral of removal was done on a case by case basis, that she had initiated removal earlier in January and that she did not see anything in the file to warrant deferring removal. |
[21] Kathie Woodcock's affidavit spawned a response from the applicant through an affidavit dated March 26, 1999.
[22] In that affidavit, the applicant says that his counsel informed him that Ms. Moffett never told him that deferral of removal is done on a case by case basis but rather
| ... plainly stated she would not consider a deferral of removal, even after being advised by my counsel that I made an application for landing on humanitarian and compassionate grounds nearly six months ago. |
[23] None of the deponents were cross-examined on their affidavits.
Analysis
(a) Serious issue:
[24] The jurisprudence of this Court is clearly to the effect that a removal officer such as Carolyn Moffett has some discretion under the Immigration Act concerning removal once the removal officer has become involved in making deportation arrangements. The reason this discretion exists is because removals under section 48 of the Immigration Act are to be carried out "as soon as reasonably practicable."
[25] Justice Simpson in Poyanipur v. Canada 116 F.T.R. 4 held that, in appropriate circumstances, a legitimate consideration in the exercise of that discretion might include the fact that it would be reasonable to await a pending decision on a humanitarian and compassionate application.
[26] The fact that a humanitarian and compassionate application is still outstanding is not in and of itself a bar to the execution order. (See Francis v. Canada, IMM-156-97, a decision by Noël J., as he then was, dated January 14, 1997)
[27] Whether it is appropriate for a removal officer to take into account the fact that there is an outstanding humanitarian and compassionate application will depend on the circumstances of each case. See for example Pavalaki v. Canada (IMM-914-98, a decision of Reed J. dated March 10, 1998, and Omokaro Ukponmwan v. Canada, IMM-4044-98, a decision of Evans J. dated August 13, 1998.)
[28] Put at its highest, the thrust of the applicant's argument is that Carolyn Moffett was stated to have flatly said to the applicant's counsel words to the effect "we do not defer removals for humanitarian reasons and will not defer Mr. Umukoro's."
[29] If words to that effect had been conveyed to the applicant's counsel, the removal officer would have fettered her discretion because she would have failed to inquire whether, in the particular circumstances, the existence of an outstanding humanitarian and compassionate grounds application was an appropriate and relevant consideration.
[30] The respondent denies that the removal officer said that outstanding humanitarian and compassionate applications are never taken into account in deferring removal requests. The respondent says this is done on a case by case basis.
[31] My view of the evidence leads me to conclude that the applicant on this issue of fettering of discretion has a weak case. However, the affidavit evidence which was not subject to cross-examination is contradictory and its meaning subject to interpretation. The uncertain state of the facts raises a serious issue because it underpins the fettering of discretion issue.
(b) Irreparable harm
[32] The applicant must satisfy the Court on the balance of probabilities that he will suffer irreparable harm if he is removed to Nigeria while his application for processing his permanent residence in Canada on humanitarian and compassionate grounds is outstanding.
[33] The applicant says he will suffer irreparable harm because failed refugee claimants run a serious risk of being detained and tortured on return to Nigeria.
[34] The only piece of evidence the applicant adduces in support of this allegation is a memo dated January 16, 1998, from the Research Directorate, Immigration and Refugee Board, Ottawa, (IRB) reporting on information provided to the Research Directorate in a January 14, 1998 telephone interview with a Lagos-based representative of the Ford Foundation for West Africa who expressed an opinion that failed refugee claimants run a serious risk of being detained and tortured on return to Nigeria.
[35] The Ford Foundation's representative also told the IRB that detention and torture is greater if the person is known to be an opponent of the government and that the current government (in January of 1998) is very sensitive about its image, and making a refugee claim "could quite likely be interpreted" by the government as a "misrepresentation of the situation in Nigeria."
[36] I have examined the entire IRB Research Directorate paper adduced by the applicant and I am not at all persuaded, even on its face, that it supports the applicant's position on irreparable harm.
[37] In particular, I note that the information paper, apart from the opinion of the representative of the Ford Foundation, gives the example of only one failed refugee who is alleged to have been detained. The example is one reaching back to 1995.
[38] The respondent counters the applicant's evidence by extracts from BBC News in March of this year focussing on the recent elections in Nigeria, the transition from military to civilian government, the freeing of detainees and the dropping of charges from a bloody coup attempt in 1990.
[39] The applicant, in his supplementary affidavit of March 26, attempted to rebut the respondent's current information on the situation in Nigeria by adducing ten recent news articles obtained from the IRB Documentation Centre in Toronto.
[40] I examined this documentation. None of it speaks of failed refugees being detained and tortured in Nigeria.
[41] Based on the evidence placed before me I am of the view that the applicant simply has not made out a case on irreparable harm. The evidence he adduces is thin (one document based on a telephone interview in January of 1998) uncorroborated by other evidence, and gives only one example of the disputed treatment of a 1995 failed refugee claimant.
[42] In summary, I find the applicant's evidence on irreparable harm speculative, hypothetical and outdated. The applicant needed much more to satisfy me that on the balance of probabilities he would suffer irreparable harm is the stay was not granted.
[43] Given the finding on irreparable harm, I need not make a finding on balance of convenience but simply would echo what Justice Reed said in Pavalaki about eleventh hour stay applications and their effect on the respondent.
[44] Stay application dismissed.
"François Lemieux"
Judge
TORONTO, ONTARIO
March 31, 1999.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1430-99
| STYLE OF CAUSE: FREDERICK OGHENERUMU UMUKORO |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: MONDAY, MARCH 29, 1999
PLACE OF HEARING: TORONTO, ONTARIO
| REASONS FOR ORDER BY: LEMIEUX J. |
DATED: WEDNESDAY, MARCH 31, 1999
APPEARANCES: Mr. Michael Brodzky
For the Applicant
Mr. Godwin Friday
For the Respondent
SOLICITORS OF RECORD: Michael E. Brodzky
Barrister & Solicitor
69 Elm St.,
Toronto, Ontario
M5G 1H2
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990331
Docket: IMM-1430-99
Between:
| FREDERICK OGHENERUMU UMUKORO |
| Applicant |
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER