Ukponmwan v. Canada ( Minister of Citizenship and Immigration )
IMM-4044-98
Evans J.
13/8/98
7 pp.
Motion to stay removal order on ground likely to be subject to detention and torture by Nigerian authorities on return, both because Ogoni and member of resistance group, and as person having unsuccessfully made refugee claim abroad-Motion dismissed-Two jurisdictional issues: (1) Jurisdiction of Court to grant stay of deportation order where validity of order not in question; (2) Jurisdiction of Court to review decisions made respecting execution of deportation orders-On first issue, conflicting case law-Applicant's essential point violation of Charter, ss. 7, 12 for respondent to remove applicant from Canada in circumstances where on return, likely to be detained without trial and subject to torture by Nigerian authorities-As would undermine jurisdiction of Court over this application if applicant removed to Nigeria prior to its disposition, Court has jurisdiction to stay removal until application determined: compare Nguyen v. Canada (Minister of Employment and Immigration), [1993] 1 F.C. 696 (C.A.), at pp. 708-709-Second jurisdictional issue concerning amenability to judicial review of enforcement officer's decision directing applicant to report for removal, when validity of deportation order itself not impugned-If applicant cannot challenge validity of removal to Nigeria at this stage, how else to protect legal right not to be exposed by Canada Immigration to torture and unlawful detention at hands of Nigerian authorities-Cardinal principle of our law that persons should not be denied effective remedy to vindicate legal rights, especially those guaranteed by Constitution-Accordingly, Court has jurisdiction to review validity of directions for applicant's removal to Nigeria and to order its stay, where, as here, applicant alleging likely to be tortured or detained by Nigerian authorities on return-Exercise of jurisdiction discretionary, guided by three-pronged test established in Toth v. Canada (Minister of Employment and Immigration), [1989] 1 F.C. 535 (C.A.)-Serious issue whether removal from Canada of person likely to be subjected to torture or prolonged detention without trial contrary to Charter, ss. 7, 12-On evidence, Court not satisfied, on balance of probabilities, likely to experience these misfortunes if removed to Nigeria-Therefore, application for judicial review not raising serious question or fairly arguable case-Accordingly, Court declining to exercise discretion to stay applicant's removal-Unnecessary to consider irreparable harm and balance of convenience elements of Toth test-Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 12.