Date: 19990831
Docket No.: IMM-3458-99
Ottawa, Ontario, this 31st day of August, 1999
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
CHARLES TEMPO OSAGIE IMAFIDON
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER and ORDER
[1] Further to the hearing of this case on July 26, 1999, I advised that my reasons would follow shortly and these are my reasons. Charles Tempo Osagie Imafidon asks the Court to stay the Direction to Report made against him on July 6, 1999 by Becky Dulay, an Enforcement Officer with Citizenship and Immigration Canada. The Direction to Report requires Mr. Imafidon to present himself for deportation to Nigeria on July 27, 1999. The ground upon which the stay is requested is that the Direction to Report should not have been issued until Mr. Imafidon"s application for humanitarian and compassionate consideration was processed. The application was received at the Case Processing Centre in Vegreville, Alberta on July 13, 1999. Mr. Imafidon has brought an Application for Leave and Judicial Review of the Direction to Report on the same ground.
[2] Mr. Imafidon says in his Affidavit that he came to Canada in 1988. There are no particulars of his immigration history in his Affidavit but it appears from the decision of the Immigration Appeal Division dated August 31, 1998 (filed by the Respondent) that he may have applied for and been denied refugee status. With the sponsorship of his wife, he achieved landed immigrant status in June 1992. At the time of being granted landed immigrant status, he failed to disclose his conviction for "welfare fraud" in May 1992 for which he served 30 days of incarceration, underwent a period of probation and paid $11,000 in restitution. On June 27, 1996 he was convicted of conspiracy to possess property obtained by crime of a value in excess of $5,000. This arose out of his "employment" crating used vehicles, some of which lacked ignition switches, for shipment to Africa. As a result of these convictions, a report was made pursuant to s. 27 of the Immigration Act advising the Deputy Minister of the convictions. An inquiry was undertaken and on August 1, 1997 his landed immigrant status was revoked and he was ordered deported. This was appealed to the Immigration Appeal Division which, in reasons dated August 31, 1998, dismissed his appeal. An application for leave to commence judicial review of the Immigration Appeal Division decision was refused on February 9, 1999.
[3] The material filed in support of Mr. Imafidon"s application for a stay includes his affidavit in which he deposes to his fear of persecution because of his activities as a student leader prior to his departure from Nigeria. He also describes his relationship with his six year old daughter with whom he is in frequent contact; she will, he says, be deprived of her relationship with her father if he is deported. Mr. Imafidon admits his responsibility for his criminal behaviour and submits evidence of positive changes in his life including graduation from an anger management class and testimonials from members of his church.
[4] The Affidavit of Monday Ediagbonya (submitted at the hearing of the application, with the consent of counsel for the Respondent) says she was told by neighbours of Mr. Imafidon"s parents that his father and brother were arrested and that his father died in prison. Mr. Imafidon"s Affidavit says that both his parents were killed after he left the country. He goes on to say that he has no other family there (Nigeria). The Immigration Appeal Division decision says: "He admits that he has many relatives in a large extended family who continue to live in his country of citizenship. No evidence was tendered, wither [sic] through testimony or documents, that the appellant fears persecution upon his return to his country of citizenship".
[5] At the conclusion of the hearing, I advised counsel for the Applicant that the stay application was dismissed because there was no serious issue to be tried with respect to the application for judicial review. There is ample authority that the fact that an application for an exemption on humanitarian and compassionate grounds is pending is not, of itself, grounds to grant a stay of deportation. In this particular case, the delay in applying for humanitarian and compassionate consideration until the eve of deportation argues against a stay being granted. Since all three elements of the test in Toth v. M.E.I., [1989] 1 F.C. 535 (F.C.A.) must be present, this is sufficient to dispose of the application. In the end result, it is hereby ordered that the application for a stay of the Direction to Report is dismissed.
O R D E R
IT IS HEREBY ORDERED that the application for a stay of the Direction to Report is dismissed.
"J.D. Denis Pelletier"
Judge