Date: 20040405
Docket: IMM-894-04
Citation: 2004 FC 526
Ottawa, Ontario, this 5th day of April, 2004
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
ANN KENTOA
Applicant
- and -
THE SOLICITOR GENERAL FOR CANADA
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] The applicant is a citizen of Nigeria who arrived in Canada in 1999.
[2] The applicant made a Convention refugee application, which was rejected on July 11, 2000. On January 2, 2001, the Federal Court, Trial Division (as it was then known) denied the applicant leave to judicially review the negative refugee determination.
[3] The applicant's Post-Determination Refugee Claimants in Canada ("PRDCC") application was refused on May 1, 2002. Her application to judicially review this decision was denied on September 26, 2002.
[4] The applicant's Pre-Removal Risk Assessment ("PRRA") application was refused on February 28, 2003.
[5] The applicant filed an application for landing, which was refused on June 25, 2003 based on the H & C Officer's view that the applicant would not suffer undue, disproportionate or undeserved hardship if she were required to apply for permanent residence from outside Canada.
[6] On November 19, 2003, the applicant was denied leave to seek judicial review of the H & C Officer's decision.
[7] The applicant was scheduled for removal on September 22, 2003. Her request to defer removal was refused. She failed to appear for removal as scheduled and a warrant was issued for her arrest. The applicant was arrested on January 23, 2004 when she appeared in criminal court.
[8] The applicant requested that her removal be deferred on the basis that she is required as a witness in potential criminal proceedings against a pastor for sexual assault. The applicant now also states that she has filed civil proceedings against the pastor and must be in Canada to pursue this claim and that she will be filing an additional humanitarian and compassionate grounds ("H & C") application for landing as a permanent resident.
[9] By a decision communicated to the applicant on January 23, 2004, a removal officer refused to defer the applicant's removal from Canada, scheduled for January 28, 2004.
[10] On January 27, 2004, the applicant's removal was stayed for a period of seven days by O'Reilly J. to permit time for the filing of proper materials for a stay motion.
[11] On February 2, 2004, the applicant filed an application for leave to judicially review the decision.
[12] On February 3, 2004, the applicant filed this motion to stay the execution of her removal order, pending the outcome of her underlying judicial review application. The respondent undertook to not deport the applicant pending this Court's determination of the stay motion.
Issue
[13] Should an order issue staying the removal of the applicant?
Analysis and Decision
[14] It is now accepted that an officer has some discretion and may, in certain circumstances, stay the removal of an applicant (see Wang v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 295 (QL), 2001 FCT 148).
[15] In order to obtain a stay, the applicant must satisfy the requirements set out in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.), at page 305:
This Court, as well as other appellate courts have adopted the test for an interim injunction enunciated by the House of Lords in American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 [Footnote 3 appended to judgment]. As stated by Kerans J.A. in the Black case supra:
The tri-partite test of Cyanamid requires, for the granting of such an order, that the applicant demonstrate, firstly, that he has raised a serious issue to be tried; secondly, that he would suffer irreparable harm if no order was granted; and thirdly that the balance of convenience considering the total situation of both parties favors the order.
The applicant must meet all three branches of the tri-partite test.
[16] I wish to deal first with the issue of irreparable harm. I have reviewed the materials filed by the applicant and I cannot find that she would suffer irreparable harm if removed from Canada. As far as can be determined from the filed material, the pastor had not been charged, thus the applicant may or may not be a witness in a criminal proceeding. As well, I am of the view that the filing of a statement of claim against the pastor cannot, alone, serve as a basis for irreparable harm in that the applicant would not be here to pursue her civil claim.
[17] I have considered the applicant's Charter arguments and I am of the view that these arguments are moot as no joint removal arrangement is in place and I am not prepared to exercise my discretion to consider the arguments.
[18] As the applicant must satisfy all three partes of the tri-partite test to obtain a stay, I need not deal with the other parts of the test.
[19] The applicant's motion for a stay of her removal is dismissed.
ORDER
[20] IT IS ORDERED that the applicant's motion for a stay of her removal is dismissed.
"John A. O'Keefe"
J.F.C.
Ottawa, Ontario
April 5, 2004
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-894-04
STYLE OF CAUSE: ANN KENTOA
- and -
THE SOLICITOR GENERAL FOR CANADA
PLACE OF HEARING: By Way of Telephone Conference Between
Ottawa and Toronto
DATE OF HEARING: February 11, 2004
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
APPEARANCES:
Mr. Munyonzwe Hamalengwa
FOR APPLICANT
Ms. Stefanovic
Ms. Sally Thomas
FOR RESPONDENT
SOLICITORS OF RECORD:
Munyonzwe Hamalengwa
Mississauga, Ontario
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT