Date: 20050113
Docket: IMM-10424-04
Citation: 2005 FC 33
BETWEEN:
ANTHONY KOJO FRIMPONG
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for a stay of a removal order pursuant to which the Applicant is being deported to Ghana. The Applicant had requested a deferral of removal based upon the existence of a pending leave for judicial review of the denial of his "H & C" application. The request for deferral was denied.
[2] The Applicant's refugee claim was denied in October, 2001 and leave for judicial review was denied. On March, 2002 he submitted a H & C application. He then married Opal Bentley in January, 2003 and amended is H & C application to add the grounds of sponsorship by his wife.
[3] The Applicant received a negative PRRA served on him in August, 2004 although the decision had been made in January of that year.
[4] In August, 2004, immigration officials advised the Applicant that they had information that he had been separated from his wife since May and that this information would be added to his H & C file. He was given an opportunity to respond, which he exercised.
[5] On November 16, 2004 the Respondent denied the H & C application on the grounds that there were "insufficient humanitarian and compassionate grounds".
[6] The basis of the Applicant's leave for judicial review of the H & C decision is that a) the Applicant was entitled to receive the reasons for the decision (the official's notes) at the same time as he received the decision and, (b) that there had been a denial of natural justice in that he did not receive the actual information given to officials by his wife - that information contained allegations about the reasons for the separation in addition to the fact that the couple had separated.
[7] On the question of "serious issue", the Applicant may raise the issues which are at stake in the H & C matter even though the decision immediately under attack is the refusal to defer. This is because, firstly, the removal officer's discretion to defer is very narrow and the merits of a pending leave application would not be a basis for the officer to defer; secondly, the Applicant would have no basis for seeking a stay of a negative H & C decision. The Applicant is entitled to raise the fact that he has a serious issue in a legal proceeding which is the cornerstone of the removal order.
[8] However, the Applicant still must meet all elements of the tripartite test established by Toth v. Canada (Minister of Employment & Immigration ), [1988] F.C.J. 587.
[9] Whatever the merits of the legal issue raised, I am not satisfied that the Applicant will suffer irreparable harm by virtue of his removal. There is no evidence of risk nor are there any special circumstances beyond those which arise as a natural consequence of deportation. The leave application and the judicial review, if any, can proceed while the Applicant is out of the country.
[10] I make this determination on the basis that the Respondent will apply to this Applicant its policy of returning to Canada those successful judicial review applicants.
[11] In view of this finding on irreparable harm, I need not make any determination on the issue of balance of convenience.
[12] For these reasons, the application for a stay of the removal order will be dismissed.
"Michael L. Phelan"
F. C. J.
Calgary, Alberta
January 13, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-10424-04
STYLE OF CAUSE: Anthony Kojo Frimpong v. The Minister of Citizenship
and Immigration
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: January 12, 2005
REASONS FOR ORDER : PHELAN, J.
DATED: January 13, 2005
APPEARANCES:
Ms. Lori A. O'Reilly
FOR APPLICANT
Mr. Rick Garvin FOR RESPONDENT
SOLICITORS OF RECORD:
O'Reilly Law Office
Calgary, Alberta FOR APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT