AMATH DIOUF Applicant v. THE MINISTER OF, 2013 FC 220

Date: 20130305 Docket: IMM-1530-13 Citation: 2013 FC 220 [UNREVISED ENGLISH CERTIFIED TRANSLATION] Montréal, Quebec, March 5, 2013 PRESENT: The Honourable Mr.

Justice Roy BETWEEN: AMATH DIOUF Applicant and THE MINISTER OF PUBLIC SAFETY ANDEMERGENCY PREPAREDNESS Respondent REASONS FOR ORDER AND ORDER [1] The applicant, Amath Diouf, filed a motion for a stay of the deportation order scheduled for March 9, 2013. [2] To obtain this stay, the applicant must satisfy the Court that a serious question is to be argued, that the stay is necessary toprevent irreparable harm to him and that the balance of convenience is in his favour (RJR - Macdonald Inc v Canada (Attorney General), (SCC), [1994] 1 SCR 311; Toth v Canada (Minister of Employment and Immigration) (1988), (FCA), 86 N.R. 302 (FCA)). [3] The facts of this matter, for the purposes of the motion for a stay, may be summarized as follows: a.

The applicant arrived in Canada on January 24, 2006, holding a valid study permit; b. The applicant was married on April 13, 2007, to a Canadian citizen. An application for his permanent residence was filed in 2007by the applicant’s spouse; c. The said application for permanent residence was refused on December 7, 2009. An appeal from this refusal was brought onJanuary 27, 2010, but the applicant’s spouse discontinued her appeal later in 2010; d.

The applicant claimed refugee status on June 6, 2011; his application was rejected on August 24, 2012, the very day that theapplication was heard, and no judicial review of this decision was requested; e. The applicant has been involved in divorce proceedings since November 17, 2011. He alleged that issues may have to be arguedpertaining to the partition of family patrimony. Counsel for the applicant also noted in his letter of February 21, 2013, at the CanadaBorder Services Agency, through which he requested a stay of the removal order, [Translation] “Mr. Diouf is entitled to request supportfrom Ms. Diouf”.

[4] The motion for a stay was filed on February 21, 2013, following the decision of February 13, 2013, to set the removal date toMarch 9, 2013. [5] The applicant made two arguments in support of his motion for a stay. First, he states that he fears for his life if he returns toSenegal. This is the essence of the argument made for the refugee claim, which was rejected in court on August 24, 2012.

The motionfor a stay is not for the purpose of appealing a refugee status decision: the application for judicial review is the appropriate remedy.Therefore, it is easy to rule on this argument. [6] The second argument can be summarized by a request to stay in Canada to complete the divorce proceedings initiated15 months ago. [7] A law enforcement officer gave the reasons for which he refused to stay the removal order scheduled for March 9, 2013, in adocument dated February 27, 2013. The enforcement officer found [Translation] “that there is no obstacle to removal”.

Noting hislimited power to intervene, he pointed out subsection 48(2) of the Immigration and Refugee Protection Act and stated that the[Translation] “removal would not cause him irreparable harm”. In fact, the law enforcement officer had stated that the applicant may putforward his arguments with respect to his divorce case after his removal from Canada. [8] The applicant argued in this Court that the law enforcement officer’s decision was unreasonable.

The serious question relatesto the need to challenge the grounds for divorce and the relief corollary to divorce (partition of patrimony and a right to request support);the applicant claimed that the law enforcement officer breached the principle of natural justice, allegedly because he refused to use hisdiscretion to defer removal. It is alleged that the officer had not correctly assessed the evidence. [9] I would reject the motion for a stay on this basis alone from this Court. The applicant failed to persuade me that there is aserious question that may entitle him to a stay.

The applicant stated in his affidavit that he should stay in Canada to [Translation] “toallow me to settle my divorce according the law”, affidavit of February 26, 2013, paragraph 27). The Court does not see how the lawenforcement officer could have failed to observe a principle of natural justice (Wang v Canada (Minister of Citizenship andImmigration), 2001 FCT 148 , [2001] 3 FC 682).

In addition, the reasons given by the officer with respect to his limiteddiscretion, satisfy the requirements in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador, 2011 SCC 62, [2011] 3 SCR 708, specifically paragraphs 14 to 16. [10] But there is more. Neither the criteria of irreparable harm nor the balance of convenience are in the applicant’s favour.Further, it is the applicant’s burden to persuade the Court of these. [11] The applicant would like the Court to decide that the inconvenience of not being in Canada to attend divorce proceedingswould become an irreparable harm.

With respect, there would have to have been a stronger demonstration from the applicant withsupporting evidence to show irreparable harm. The vague statement alone is not sufficient. [12] It then follows that the balance of convenience is not in the applicant’s favour. The Act provides that the removal order berelatively expeditious (section 48).

The public interest in the removal taking place to maintain the integrity of the system (Membreno-Garcia v Canada (Minister of Employment and Immigration, (FC), [1992] 3 FC 306) also prevails when there is noserious question or irreparable harm. [13] Accordingly, the application to stay the removal order scheduled for March 9, 2013, is dismissed. ORDER THE COURT ORDERS that the application to stay the removal order scheduled for March 9, 2013, is dismissed. “Yvan Roy” Judge Certified true translation Catherine Jones, Translator FEDERAL COURT SOLICITORS OF RECORD

DOCKET: IMM-1530-13 STYLE OF CAUSE: AMATH DIOUF V THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: March 4, 2013 REASONS FOR JUDGMENT BY: ROY J. DATED: March 5, 2013 APPEARANCES : Dorin Cosescu FOR THE APPLICANT Margarita Tzavelakos FOR THE RESPONDENT SOLICITORS OF RECORD : Dorin Cosescu Montréal , Quebec FOR THE APPLICANT William F. Pentney Deputy Attorney General of Canada FOR THE RESPONDENT