Elias v. Canada (Minister of Citizenship and Immigration), docket IMM-824-00

Date: 20000218

Docket: IMM-824-00

OTTAWA, ONTARIO, THIS 18^th DAY OF FEBRUARY 2000.

PRESENT:      THE HONOURABLE MR. JUSTICE NADON

BETWEEN:

     BELA ELIAS,

     Applicant,

     - and -

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION,

     Respondent.

     ORDER AND REASONS THEREFOR

     The Applicant is scheduled to be removed from Canada at 11:00 o"clock pm tonight, and he seeks an order staying the execution of an exclusion order made against him.

     He is presently in detention in Toronto. He has been unable to file a proper motion and has filed no affidavit, save for the affidavit of Jozef Sarkozi, a paralegal and interpreter. This affidavit is not one that I would normally consider, since it is entirely based on hearsay. However, for these purposes, I have considered Mr. Sarkozi"s affidavit, and I have also considered viva voce statements made to me, at my request, by Ms. Oberst, counsel for the Respondent. The following facts appear either from Mr. Sarkozi"s affidavit or by reason of Ms. Oberst"s representations.

     The Applicant arrived in Canada on August 27, 1998, with his wife and they immediately claimed refugee status. On June 3, 1999, the Applicant left Canada for Hungary to allegedly visit his sick grandmother. It appears that the Applicant, prior to his departure from Canada, withdrew his refugee claim.

     Since the Applicant did not advise Immigration officials of his departure from Canada, the conditional departure order made against him, at the time he made his refugee claim, became a deemed deportation order¹. As a result, the Applicant required a Minister"s permit to enter Canada.

     The Applicant returned to Canada on February 8, 2000, without having obtained a Minister"s permit. Hence, on February 16, 2000, an exclusion order was made against him and Immigration officials intend to enforce that order at 11:00 pm tonight.

     I heard representations from the Applicant"s wife as to why the execution should be stayed. I have heard nothing which would allow me to make the order sought. Even assuming that the facts related in Mr. Sarkozi"s affidavit are true, there is no basis for me to intervene and stay the enforcement of the exclusion order. Mr. Elias, the Applicant, requires a Minister"s permit to enter Canada and, unfortunately for him, I cannot be of any help in that regard.

     For these reasons, the application is denied.

     Marc Nadon

     _________________________

     JUDGE

¹      When the Applicant withdrew his refugee claim, the conditional departure order became effective (see subsections 28(1) and 28(2) of the Immigration Act). As a result of the Applicant"s departure from Canada without notification to Immigration officials, the departure order became a deemed departure order (see subsection 32.02(2) of the Act).