Date: 20000613
Dockets: IMM-2357-00
IMM-2545-00
BETWEEN:
AINA LANRE GIWA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.
A. Background
[1] The applicant Aina Lanre Giwa seeks a stay of the execution of a removal order scheduled for June 15, 2000.
[2] The applicant, a citizen of Nigeria, came to Canada in September of 1997 and made a refugee claim later that year which was denied by the Refugee Division on April 6th, 1999.
[3] On April 27th, 1999 she made an application for landing based on membership in the post-determination refugee claimants in Canada class (PDRCC). She made submissions dated May 1st, 1999 to the Post Determination Claim"s Officer (PDCO). The PDCO made a negative assessment of which the applicant was informed of on May 8th , 2000. On that same date she received a call-in notice for the purpose of making her arrangements for her departure from Canada. She received on May 23rd, 2000 a direction to report at the Pearson International Airport on Thursday, June 15th, 2000.
[4] On May 5th, 2000 the applicant, pursuant to Section 82.1 of the Immigration Act ("the Act") filed an application for leave and for judicial review of the Refugee Division"s April 6th , 1999, and also sought an extension of time (Court File No. IMM-2357-00).
[5] On May 17th, 2000, the applicant filed an application for leave and for judicial review from the PCDO"s decision (Court File No. IMM-2545-00).
[6] At the urging of both counsel, I was invited to consider the applicant"s stay application on the basis of both her judicial review applications.
B. Discussion
(a) Extension of Time (Court File No. IMM-2357-OO)
[7] The applicant was approximately 13 months late in seeking leave from the Refugee Division"s April 1999 decision. She needs an extension of time which under section 82.1(5) of the Act required the demonstration of special reasons.
[8] There is case law in this Court, which I favour, to the effect that this Court is without jurisdiction on a stay application where the underlying application for leave is subject to a decision extending time before consideration. Some judges of this Court have adopted the practice, on consent, on stay applications from the execution of removal orders to decide the extension question first.
[9] The Federal Court of Appeal in Independent Contractors and Business Association et al. v. Canada (Minister of Labour) et al. 225 N.R. 19, referring to its decision in Tarsem Singh Grewal v. Minister of Employment and Immigration [1985] 2 F.C. 263 set out the test which must be met on an extension of time. One of the elements is a justification for the delay.
[10] The applicant"s material simply does not satisfy me on this aspect of the matter. The applicant put forward one justification for the 13-month delay, namely, the fact she had filed a PDRCC application 15 days after the Refugee Division"s decision an application which she interpreted to be a reconsideration of the Refugee Division"s decision. That justification is without foundation as the Refugee Division"s decision clearly advised her of her right to seek judicial review and of the fact the time for doing so was limited. On this basis, extension of time is denied.
(b) The Challenge to the PCDO (Court File No. IM-2545-00)
[11] The applicant raised as a serious issue the PCDO"s failure to take into account current country conditions and particularly the February 25, 2000 1999 Country Report on Nigeria released by the U.S. State Department (DOS). In particular, the applicant complains that the PCDO did not take into account the statement in that report that police continued the practice of placing relatives and family members of wanted suspects in detention without criminal charge to induce suspects to surrender to arrest. The applicant says this is her case. The authorities want her husband who has left that country.
[12] The applicant"s argument is not convincing. The PCDO in his decision (Respondent"s Record, page 11) specifically refers to the 1999 DOS to the effect that country conditions have turned to the better. Reading his decision as a whole, I am satisfied the PCDO was aware of the applicant"s fear and its basis. He was not persuaded by the applicant"s submissions in the overall context of the material before him.
[13] There being no serious issue made out, I need not consider the other elements of the tri-partite test.
[14] For these reasons, the stay application will be dismissed.
"François Lemieux"
J.F.C.C.
Toronto, Ontario
June 13, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NOS: IMM-2357-00 |
| IMM-2545-00 |
| STYLE OF CAUSE: AINA LANRE GIWA |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| DATE OF HEARING: MONDAY, JUNE 12, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: LEMIEUX J. |
DATED: TUESDAY, JUNE 13, 2000
| APPEARANCES: Ms. Stella Iriah Anaele |
| For the Applicant |
Ms. Diane Dagenais
| For the Respondent |
| SOLICITORS OF RECORD: Stella Iriah Anaele |
| Barrister & Solicitor |
296A Wilson Avenue
North York, Ontario
M3H 1S8
| For the Applicant |
| Morris Rosenberg |
| Deputy Attorney General of Canada |
| For the Respondent |
FEDERAL COURT OF CANADA
Date: 20000613
Dockets: IMM-2357-00
IMM-2545-00
BETWEEN:
| AINA LANRE GIWA |
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
| REASONS FOR ORDER |