Ottawa, Ontario, February 23, 2006
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] The Applicant, Oladimeji Aremu Sofela, is seeking a stay of deportation pending the determination of his application for leave and for judicial review from a decision denying his claim to permanent Canadian residency.
[2] I must, of course, apply the tripartite test from Toth v. Canada(Minister of Employment and Immigration)(1988), 86 NR 302 (FCA) to the facts presented in support of this motion.
[3] I have no difficulty in finding that the decision to deny the application for permanent residency raises a serious issue. That decision was based upon a finding that the Applicant had entered Canada using a fraudulently obtained document. The officer stated in the decision letter that this made the Applicant inadmissible under the spouse or common-law partner in Canada class. The Respondent's guidelines on this admissibility issue suggest that more may be required to deny entry than the simple fact that a person entered Canada with a fraudulently obtained travel document. There is also some doubt in the record about whether the Respondent is holding the Applicant's Nigerian passport and this, too, may be relevant to his admissibility. The serious issue threshold is not difficult to overcome and, despite the capable submissions by counsel for the Respondent, I think that a serious issue is raised by the Applicant's application for judicial review.
[4] The problem here for the Applicant arises from the evidence that he relies upon to establish irreparable harm. His affidavit refers to the risk of returning to Nigeria but that issue was previously considered and rejected by the Immigration and Refugee Board (Board) and in a fairly recent Pre-Removal Risk Assessment (PRRA). Nothing new is referenced in the Applicant's affidavit in support of this motion beyond what had been previously submitted for consideration on those two earlier reviews.
[5] The other evidence relied upon in the affidavit to establish irreparable harm speaks to the suffering that the Applicant and his spouse will experience from a forced separation. The affidavit also offers some rather vague evidence that the Applicant's spouse has some ongoing health problems but the attached medical report is inconclusive. If the Applicant's spouse was substantially physically or financially dependant upon him, presumably that evidence would have been available and offered for my consideration. In its present form, this evidence does not rise above the kind of inconvenience and general suffering that is the unfortunate consequence of any deportation. The authorities are quite clear that such matters - as regrettable as they are - do not constitute irreparable harm. This point was made by Justice Pelletier in his decision in Melo v. Canada(Minister of Citizenship and Immigration),[2000] FCJ No. 403 where he stated at paragraph 21:
[21] These are all unpleasant and distasteful consequences of deportation. But if the phrase irreparable harm is to retain any meaning at all, it must refer to some prejudice beyond that which is inherent in the notion of deportation itself. To be deported is to lose your job, to be separated from familiar faces and places. It is accompanied by enforced separation and heartbreak. There is nothing in Mr. Melo"s circumstances which takes it out of the usual consequences of deportation. This is not a case of deporting a 73-year-old woman who cared for and in turn was cared for by her elderly husband, as was the case in Belkin supra . Nor is it a case of deporting someone who is the sole caregiver for a blind and sick grandparent as was the case in Richards v. Canada 2. Mr. Melo is not being sent to a place as inhospitable as Albania with his young child as was Mr. Abazi 3. As unhappy as these circumstances are, they do not engage any interests beyond those which are inherent in the nature of a deportation.
[6] In light of my finding with respect to the issue of irreparable harm, it is unnecessary to consider the balance of convenience.
ORDER
THIS COURT ORDERS that this application for a stay of deportation is dismissed.
" R. L. Barnes "
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-656-06
STYLE OF CAUSE: OLADIMEJI AREMU SOFELA
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: Feb. 21, 2006
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MR JUSTICE BARNES
DATED: Feb. 23, 2006
APPEARANCES BY:
Johnson Babalola FOR THE APPLICANT
Marina Stefanovic FOR THE RESPONDENT
SOLICITORS OF RECORD:
Johnson Babalola
Barrister & Solicitor
Toronto, Ontario FOR THE APPLICANT
John H. Sims Q.C
Deputy Attorney General of Canada
Toronto, Ont. FOR THE RESPONDENT