Volyanyuk v. Canada (Minister of Citizenship and Immigration), 2003 FCT 19

Date: 20030114

Docket: IMM-6560-02

Neutral citation: 2003 FCT 19

EDMONTON, ALBERTA, this 14^th day of January, 2003

Present:           THE HONOURABLE MR. JUSTICE BEAUDRY                                      

BETWEEN:

                                                            OLHA VOLYANYUK and

OLEH KRAVCHUK

                                                                                                                                                      Applicants

                                                                                 and

                                                  THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 This is a Notice of Motion on behalf of the applicants filed the 10^th day of January, 2003, for an abridgement of time and an interim stay of the scheduled Deportation Order made against the applicants on December 6, 2002, pending determination of the Application for Leave and for Judicial Review, filed December 20, 2002, of the decision of the Director of Citizenship and Immigration rendered October 16, 2002, determining that the applicants would not be at risk if they were returned to the Ukraine.

[2]                 The applicant and her son arrived in Canada from Ukraine July 23, 1999 on a visitor's visa. Two other children are still in Ukraine being cared for by other family members.

[3]                 They were refused and extension of their visa. They subsequently made a refugee claim on November 3, 1999.

[4]                 Removal orders were issued on January 10, 2001. On July 18, 2002, the applicants were determined not to be Convention refugees.

[5]                 No application for judicial review was filed of that decision.

[6]                 On October 16, 2002, the applicants' Pre-Removal Risk Assessment ("PRRA") were rejected.

[7]                 They filed an application for leave to commence a judicial review of the October 16, 2002 decision.

[8]                 They are now asking this Court a stay of the removal order scheduled next January 19, 2003 until the determination of their application for judicial review.

[9]                 I have read the material before the Court. I have also heard the submissions of both counsels.

[10]            The applicants have not met the tri-partite test as set out in Toth v. Canada (Minister of Employment and Immigration), [1988] F.C.J. No. 587 (QL) (F.C.A.).

[11]            Serious Issue: the applicants are represented by counsel and they could still be represented even if they are out of the country.

[12]            Irreparable harm: no evidence has been provided that they would be subject to torture or would be at risk if the applicants were to be removed from Canada.

[13]            Balance of convenience: the applicants will certainly encounter inconveniences but this is inherent to the notion of deportation itself (Melo v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 403 (QL) (F.C.T.D.)). I find that the balance of convenience in the case at bar favours the respondent because of its obligation to ensure that the removal order be enforced as soon as possible (Immigration and Refugee Protection Act, s. 48(2)).

[14]            Therefore, this application for a stay of the removal order is dismissed.

                                                                                   

ORDER

THIS COURT ORDERS that this application for a stay of the removal order is dismissed.

________________________

Judge

                                                    FEDERAL COURT OF CANADA

                                                                 TRIAL DIVISION

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:       IMM-6560-02

STYLE OF CAUSE: Ohla Volyanyuk and Oleh Kravchuk v. The Minister of

Citizenship and Immigration     

                                           

PLACE OF HEARING:         Edmonton, Alberta

DATE OF HEARING:           January 13, 2003

ORDER:        The Honourable Mr. Justice Beaudry

DATED:          January 14, 2003

APPEARANCES:

Ms. Marilyn Burns                      FOR APPLICANTS

Mr. Rick Garvin                         FOR RESPONDENT

SOLICITORS OF RECORD:

McCourt Law Offices                 FOR APPLICANTS

Edmonton, Alberta

Morris Rosenberg                       FOR RESPONDENT

Deputy Attorney General of Canada