Date: 20000929
Docket: IMM-3547-00
Ottawa, Ontario, this 29th day of September, 2000
| PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE |
BETWEEN:
EVELYN NANA AFUM NYAME
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for a stay of a removal order issued against Evelyn Nana Afum Nyame (the "applicant") by the respondent.
[2] The applicant, a citizen of Ghana, claimed convention refugee status in Canada on September 15, 1992, which claim was denied on December 21, 1993.
[3] On June 4, 1993, the applicant was issued a conditional departure order and thus, the applicant was required to appear before an immigration officer to verify her departure from Canada no later than 30 days after she was notified by the CRDD of this determination.
[4] The applicant left Canada in October, 1994 without verifying her departure with Immigration. By virtue of section 32.02 of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") the departure order was deemed to be a deportation order.
[5] Subsection 55(1) of the Act requires a person against whom a deportation order has been made when she leaves Canada, to retain the written consent of the Minister to come into Canada unless an appeal of the order has been allowed.
[6] The applicant attempted to return to Canada from Ghana in June, 2000 without the written permission of the Minister. She was using a passport and other identification documents that were not her own.
[7] On June 19, 2000 an exclusion order was issued to the applicant on the grounds that she failed to obtain the Minister's consent to enter Canada.
[8] By a letter dated September 20, 2000 the applicant was informed that her removal from Canada was scheduled for September 30, 2000.
[9] The applicant has filed a judicial review application to this Court but the application for leave has not yet been heard.
Issue
[10] Should the removal orders issued against the applicant be stayed?
Analysis and Decision
[11] The tests to be applied determine whether or not to grant a stay are the same tests as for granting an interlocutory injunction. In Toth v. Canada (Minister of Employment and Immigration), (1988) 86 N.R. 302 (F.C.A.) the Federal Court of Appeal stated 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 (Compare: Apple Computer Inc. v. Minitronics of Canada et al., 8 C.P.R. (3d) 431. See also: Law Society of Alberta v. Black (1983), 69 A.R. 322; 8 D.L.R. (4th) 346 (Alta. C.A.), at 349 D.L.R.). 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, favours the order. |
The applicant is required to satisfy all three branches of the tri-partite test.
[12] After considering the material filed and the argument of counsel, I am of the opinion that the motion of the applicant must be denied because the motion does not raise a serious issue to be tried, based on the material before me.
[13] Subsection 44(1) of the Act reads as follows:
| 44. (1) Any person who is in Canada, other than a person against whom a removal order has been made but not executed, unless an appeal from that order has been allowed, and who claims to be a Convention refugee may seek a determination of the claim by notifying an immigration officer. |
44. (1) Toute personne se trouvant au Canada peut revendiquer le statut de réfugié au sens de la Convention en avisant en ce sens un agent d'immigration, à condition de ne pas être frappée d'une mesure de renvoi qui n'a pas été exécutée, à moins que la mesure n'ait été annulée en appel. |
| It is obvious from this section that the applicant cannot seek a determination of her refugee claim because of the order against her. There is therefore no triable issue. |
| [14] The motion for an order staying the removal of the applicant is hereby denied. |
| ORDER |
| [15] IT IS ORDERED that the motion for an order staying the removal of the applicant is denied. |
| "John A. O'Keefe" |
| J.F.C.C. |
| Ottawa, Ontario |
| September 29, 2000 |