Date: 20010601
Docket: IMM-2533-01
Neutral Citation: 2001 FCT 573
BETWEEN:
NGOZI PATRICIA IKEJI
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This application for the stay of a removal order came before me at Toronto on Monday, May 28, 2001.
[2] The applicant is a 22 year old citizen of Nigeria who arrived in Canada July 26, 1998, at which time she filed a claim for refugee status. A decision was rendered in May, 1999, at which time the claim was denied and, effective May 20, 1999, a departure order against the applicant became effective. Application for leave for judicial review was denied.
[3] She subsequently applied for leave for judicial review of a negative CRDD finding which was also determined in August, 1999. This application remained unperfected; nevertheless, it should be noted that the post determinant refugee claims class found there was no risk involved as of September 15, 2000.
[4] She was then invited to appear before a removal officer on October 2, 2000. At that time, she requested that the removal be deferred; this was denied. On October 11, 2000, she married one, Mr. Frank Ficker, a Canadian citizen. An inland sponsorship was forwarded to the Department of Immigration on October 31, 2000 based on her marriage and also an H & C application was filed on February 10, 2001.
[5] The grounds on which the applicant's solicitor is seeking a deferral of her removal is that her husband would suffer and that she has a pending H & C application.
[6] In support of this matter, an affidavit was filed by Mr. Frank Ficker, the applicant's husband, who indicates that he would suffer psychologically if she is deported. Attached to his affidavit is a brief letter from one Doctor N.T. Agulefo dated January 29, 2001 in which he states in two lines the following: "Mr. Ficker is presently very anxious and depressed, and I am afraid that the deportation may cause this young man a nervous or mental breakdown".
[7] The applicant is scheduled for removal June 5, 2001.
[8] There is no dispute as to the validity of the removal order. It has been well established that the issue of a stay is an extraordinary remedy and the applicant must demonstrate special and compelling circumstances that would warrant "exceptional judicial intervention".
[9] The Court is reminded by the respondent that the granting of the applicant's motion would effectively give them the relief they seek in their underlying H & C application as well as the sponsorship. The Court must engage in a more extensive review of the merits of this application.
[10] It is alleged that the removal officer erred by refusing to defer removal of the applicant pending the determination of her spousal and H & C applications without considering these factors; that the removal officer failed to adequately account for the effect of the removal on her husband.
[11] In reviewing the removal officer's notes, though she was not bound either statutorily or legally, she did take into account all of the surrounding circumstances. More particularly, this Court has held in many situations that an outstanding application based on humanitarian and compassionate grounds is not sufficient for granting a stay.
[12] Further, I am satisfied that the Court should not delay removal because of an outstanding spousal application for exemption on humanitarian and compassionate grounds. As I stated in Banwait v. Canada, M.C.I., [1998] F.C.J. No. 522, at paragraph 16:
"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."
[13] It should also be noted that this applicant has not raised the issue of risk if she were returned to Nigeria at any point in time. The officer also noted that there was an assessment performed by the PDRCC application which was refused. No new information has been produced by the applicant with respect to risk in the present motion.
[14] In raising the issue of irreparable harm, it is obvious the only irreparable harm that may or may not be suffered would be to her spouse and not to the applicant herself. There is no evidence supporting any irreparable harm to this applicant. In essence, the only irreparable harm referred to in this matter if she is deported to Nigeria is that her husband will suffer mentally and possibly even have a nervous breakdown. I am of the view that even this harm to her husband, who knew full well that she was subjected to deportation when he married her, may be somewhat speculative. There is no threat to the life or the security of this applicant if she is to be returned to Nigeria.
[15] I am satisfied that any inconvenience the applicant may face does not outweight the Minister's statutory duty to apply the law. This application for stay of the removal order is hereby dismissed.
JUDGE
OTTAWA, Ontario
June 1st, 2001