Date: 20030501
Docket: IMM-3089-03
Citation: 2003 FCT 554
OTTAWA, ONTARIO, this 1st day of May 2003
PRESENT: The Honourable Mr. Justice James Russell
BETWEEN:
SAMSON WILLIAMS
(a.k.a. OLANREWAJU BABATUNDE PETER ILORI)
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for a stay of a removal order issued against the Applicant and received by him on April 14, 2003.
[2] The Applicant asks that removal be deferred because he has made a request for reconsideration of an ineligibility finding as regards his refugee status made by officer Censoni on August 15, 2002.
[3] The removal officer refused the deferral request and officer Censoni also refused to reconsider his August 15, 2002, decision in the light of new considerations brought forward by the Applicant.
[4] The underlying judicial review application suggests that the Applicant is seeking leave for review of the decision of the removal officer and/or the decision of officer Censoni not to reconsider his ineligibility finding rendered on August 15, 2002, or the exclusion order also issued on that date.
[5] There was no disagreement between the parties concerning the necessity of satisfying the tri-partite test for determining whether an interlocutory injunction should be granted pending a determination of the case on its merits as set out in the Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.) decision.
[6] The central issue in this application is whether the Applicant has raised a serious issue that, not withstanding subsection 99(3) of the Immigration and Refugee Protection Act, S.C. 2001, c.27 ("IRPA"), officer Censoni has the jurisdiction to reconsider his decision of August 15, 2002, in light of the new considerations brought forward by the Applicant.
[7] Subsection 99(3) reads as follows:
| A claim for refugee protection made by a person inside Canada must be made to an officer, may not be made by a person who is subject to a removal order, and is governed by this Part. |
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Celle de la personne se trouvant au Canada se fait à l'agent et est régie par la présente partie; toutefois la personne visée par une mesure de renvoi n'est pas admise à la faire. |
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[8] The Respondent argues that the Federal Court of Appeal decision in Raman v. Canada (Minister of Citizenship and Immigration), [1999] 4 F.C. 140 (which dealt with subsection 44(1), the predecessor provision to subsection 99(3) in the previous Immigration Act, R.S.C. 1985, c. I-2) clearly governs the situation and prevents the Applicant in this case from having his refugee claim reconsidered because a removal order has been issued against him.
[9] The Applicant contends that it is at least a serious issue as to whether subsection 99(3) prevents a reconsideration in his case, and also raises a variety of issues concerning the refusal of officer Censoni to reconsider his August 15, 2002, decision.
[10] The Applicant seeks to distinguish his situation from the Raman, supra, decision and its progeny by pointing out that this is a reconsideration of a decision already made and in Raman, supra, the prohibition related to refugee claims made after the removal order was made.
[11] In support of his position the Applicant relies heavily on the decisions of Campbell J. in Tchassovnikov v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1111 and Reed J. in Nouranidoust v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1100 (T.D.).
[12] Of course, I am not asked to decide this issue today. All I am deciding is whether there is a serious issue that needs to be addressed.
[13] Notwithstanding the wording of subsection 99(3) of the IRPA and the statements made in Raman, supra, the conflicting jurisprudence and the seriousness of this matter at least require that this issue be dealt with in a full review hearing. The Respondent argues that the decision of Campbell J. in Tchassovnikov, supra, was made in a context in which subsection 99(3) (or subsection 44(1)) was not considered and in which the Federal Court of Appeal decision in Raman, supra, was not considered.
[14] The issue before me is whether there is a serious issue that the distinctions made by the Applicant are sufficient to overcome the wording of subsection 99(3) and the prohibitions outlined in the Raman, supra, decision.
[15] I am convinced there is sufficient here to satisfy the serious issue requirement of Toth, supra.
[16] As regards irreparable harm, notwithstanding reservations about the timing and the ways in which the Applicant has raised his problems about returning to Nigeria (he claims to be a gay man and that the police in Borno are looking for him and that the consequences to his life and health will be severe if he is detained upon his return to Nigeria), what little evidence I have before me suggests that the harm to the Applicant could indeed be extremely severe and irreparable.
[17] On the balance of convenience issue, I find in favour of the Applicant .
[18] Consequently, I believe this stay should be granted until such time as the underlying judicial review leave application has been denied or, in the event that it is allowed, the underlying application has been disposed of.
ORDER
THE COURT HEREBY ORDERS THAT: the application for a stay of a removal order is granted until such time as the underlying judicial review leave application has been denied or, in the event that it is allowed, the underlying application has been disposed of.
"James Russell"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-3089-03
STYLE OF CAUSE: SAMSON WILLIAMS v. MCI
APPLICANT'S MOTION HEARD BY TELECONFERENCE BETWEEN OTTAWA AND TORONTO
DATE OF HEARING: May 1, 2003
REASONS FOR ORDER THE HONOURABLE MR. JUSTICE
AND ORDER: JAMES RUSSELL
DATED: May 1, 2003
APPEARANCES:
Mr. Daniel Kingwell FOR THE APPLICANTS
Ms. Rhonda Marquis FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mamann & Associates FOR THE APPLICANT
Toronto, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario