Date: 19980311
Docket: IMM-5132-97
BETWEEN:
ALEXANDER SENOKOSOV AND
LILY SENOKOSOVA
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
RICHARD J.:
[1] The applicants seek a stay of the execution of departure orders issued on October 14, 1996.
[2] The applicants are citizens of Uzbekistan. They left Uzbekistan on October 11, 1996, and arrived in Canada via the U.S.A. on October 12, 1996. They stated their intention to make refugee claims upon their arrival in Canada.
[3] The applicants' refugee claims were based on the grounds of their nationality and their religion.
[4] The CRDD rejected the applicants' refugee claim on the basis that there was no credible basis for their claim under subsection 69.1(9.1) of the Immigration Act. The result of such a finding under paragraph 49(1)(f) of the Act is that the applicants may be removed after seven days have elapsed and there is no statutory stay of execution of the removal order. In these circumstances, both counsel agree that the Court must make a decision on the application to stay by applying the tripartite test.
[5] The applicants have sought leave to apply for judicial review of the decision of the Convention Refugee Determination Division (CRDD) dated November 6, 1997, wherein it found them not to be Convention refugees.
[6] The Direction to Leave Canada made by an Immigration Officer on February 28, 1996, following a meeting with the applicants on that date after they had received a CALL IN NOTICE on February 18, 1998, reads as follows:
| On October 12, 1996 you reported to the Citizenship and Immigration office at Lacolle, Quebec directly from the United States. You were refused admission into Canada but subsequently allowed in to pursue your applications for refugee status. |
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| On November 10, 1997 your claims were found to be without credible basis as per paragraph 69.1(9)-(9.1) of the Immigration Act. You were therefore required to obtain certificates of departure and leave Canada by December 24, 1997. As you failed to do so, the departure orders issued to you at Blackpool, Quebec on October 14, 1996 have been deemed deportation orders. |
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| The Embassy of the United States of America has issued authorization for you to return to the United States under the provisions of Section 111(2) of the Reciprocal Arrangement between the United States and Canada. Your legal counsel advises it is your preference to return to the United States in your own private vehicle. |
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| In compliance with the acknowledgment of terms and conditions imposed upon you at Lacolle on October 14, 1996 you are hereby directed to report to the Canadian Citizenship and Immigration office nearest the U.S. border crossing you intend to cross through on or before Thursday, March 12, 1998 for the purpose of confirming your departure from Canada. You must advise this office of the name of the border crossing well in advance so that we may provide them with the necessary documents to ensure your re-entry to the United States. |
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[7] On March 10, 1998, the applicants, through their solicitor filed a motion for an interim order pursuant to section 18.2 of the Federal Court Act prohibiting their removal.
[8] The principal ground for relief is set out in paragraph 11 of the affidavit of Alexander Senokosov.
| As we have filed Convention Refugee Claims in Canada, we are informed by our counsel and do verify believe that it is likely that, should we be deported to the United States, that we will have no legal entitlement in the United States to file new Convention Refugee Claims. As a result, our counsel informs me and I do verily believe that my wife and I face deportation from the United States back to our country of persecution, Uzebikstan, very soon after we are deported from Canada. |
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[9] In a reply affidavit made by Kathleen E. Galloway, a Senior Immigration Officer, it is stated:
| I have read the Affidavit of Alexander Senokosov sworn March 3, 1998. Concerning paragraph 11 of that Affidavit, I am informed by Pamela M. Carrozza, Immigration Attache, Embassy of the United States of America, Ottawa and believe that a person who is returned to the United States under the terms of the Reciprocal Agreement after their claim to Convention refugee status in Canada is refused, has the opportunity to ask for asylum in the United States either before an Immigration officer or at the time of their deportation hearing. |
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[10] Even if I were to assume, without deciding, that the applicants have raised a serious issue to be tried concerning the tribunal's credibility finding, they have not satisfied me, on the material before me, that they will suffer irreparable harm if the relief is not granted.
[11] They have voluntarily agreed to be removed. They are to cross the border into the U.S.A., from where they entered Canada. The U.S.A. is willing to receive them and they are entitled to seek asylum in the U.S.A. They can, in the meantime, maintain their application for leave and for judicial review of the CRDD decision. What the U.S.A. authorities will do is pure speculation at this time.
[12] The fact that they cannot, under the statute, make an H & C application in Canada does not raise a serious issue or establish irreparable harm.
[13] Accordingly, the motion is dismissed.
__________________________
Judge
Ottawa, Ontario
March 11, 1998
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