CYNTHIA ANOKWURU-NKEMKA BENITA ANOKWURU NKEMKA Applicants v. THE MINISTER OF, 2016 FC 337

Date: 20160318 Docket: IMM-1145-16 Citation: 2016 FC 337 Ottawa, Ontario, March 18, 2016 PRESENT: The Honourable Mr.

Justice Diner BETWEEN:CYNTHIA ANOKWURU-NKEMKABENITA ANOKWURU NKEMKAApplicantsandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent ORDER AND REASONS [1] UPON motion of the Applicants for an Order staying the execution of the removal order presently set for March 19, 2016; [2] AND UPON considering the evidence and the submissions contained in the motion records submitted by the Applicant andby the Respondent, as well as the oral submissions of counsel for both parties at a stay hearing held via teleconference at 9:30 p.m. onMarch 18, 2016; [3] AND UPON directing myself both to the procedural aspects of this stay motion, as well as to the substantive component ofhaving to meet the conjunctive tri-partite test in Toth v Canada (Minister of Employment and Immigration), (1998) (FCA), 86 NR 302 (FCA), namely (

i) the existence of a serious issue to be determined by the Court, (ii) irreparable harm which willensue should the stay not be granted, and (iii) that balance of convenience in issuing such Order lies in the Applicant’s favour, I amunable to find that the Applicant satisfies either requirement, for the following reasons. [4] First, there is a deficiency in the underlying Application for Judicial Review, filed March 16, 2016, which challenges the“direction for removal” and “Notice for Removal” (both are referenced in the said Application). This Court has held that these are notreviewable decisions (see Bergman v.

Canada (MPSEP), 2010 FC 1129 at paras 16-18, which provides a full summation of the law onthis procedural point). [5] I note that there was a request on this file that was made of the Inland Enforcement Officer to defer the removal, a decisionwhich was rendered hours before this stay hearing, and forwarded to the Court in a break taken during this hearing. The Applicationscould have brought a judicial review based on this deferral request, and subsequent refusal (or even a deemed refusal) given the latetiming of the decision of the Inland Enforcement Officer.

They did not do so. [6] However, even if I consider that the underlying judicial review challenged a formal decision, such as that refusal of thedeferral request, I do not find that the tripartite test has been met, and thus am not in a position to grant the stay. [7] First, I note that a higher threshold applies with respect to serious issue, where an applicant is seeking to review a refusal ofan enforcement officer to exercise his or her discretion to defer removal as stated by this Court in Baron v.

Canada (Minister of PublicSafety and Emergency Preparedness), 2009 FCA 81 at paras. 51 and 66), [Baron]. [8] While there have been decisions of this Court -- two ‘unpublished’ decisions (i.e. without neutral citations) were cited by theApplicants, and one by the Respondent -- that may be interpreted for going both ways on the issue of serious issue raised in this matter,i.e. as to whether the one year PRRA bar runs from the rejection of the refugee claim by the RPD or the RAD).

Either way, it appearsthat the Courts have not yet pronounced on this issue in any authoritative way, although this may well happen at some point in the nearfuture. [9] However, what has not been established here is the second prong of irreparable harm. The underlying harm claimed has, inmy view, been thoroughly addressed by two tribunals -- the RPD and RAD (for which judicial review was sought, but leave was alsodismissed by this Court). There is no new evidence of any new irreparable harm that has been presented in this motion. For instance, themedical evidence produced was produced before the RPD and RAD.

A more recent email from the Applicant’s mother raises the samerisks which had been raised before those two tribunals, which both found that the Applicant did not face a risk of persecution claimed inNigeria. [10] Finally, I offer one other comment. Turning back to Baron, on another issue raised in that case, Baron holds that neither theenforcement officers nor the courts should encourage or reward persons who do not have “clean hands”. The Court has on numerousoccasions dismissed stay motions on the basis of equity. The Applicants were found to have unclean hands by the RPD, and then againby the RAD.

Indeed, the RPD noted that the Applicants tried to mislead a medical professional that provided evidence. No evidencefrom the Applicants presented in this stay motion addressed this unfortunate history, or tried to explain it. [11] The RPD decision notes that the Applicants have already misled a medical professional, and that furthermore, the Applicantsmissed an enforcement interview in this matter and were ultimately arrested for doing so. This is in addition to the issues addressed inboth the RPD and RAD decisions.

ORDER THIS COURT ORDERS that this motion is dismissed. "Alan S. Diner" Judge FEDERAL COURT SOLICITORS OF RECORD Docket: IMM-1145-16 STYLE OF CAUSE: CYNTHIA ANOKWURU-NKEMKA, BENITA ANOKWURU NKEMKA v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: March 18, 2016 ORDER AND REASONS: DINER J. DATED: March 18, 2016 APPEARANCES : Ms. Mbong Alvira Akinyemi For The applicants Mr. Julian Jubenville For The Respondent SOLICITORS OF RECORD : Mbong Elvira Akinyemi Barrister and Solicitor Toronto, Ontario For The APPLICANTS William F. Pentney Deputy Attorney General of Canada Toronto, Ontario For The Respondent