Date: 20001024
Docket: IMM-5440-00
BETWEEN:
OLEG FADEEV
Applicant
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HENEGHAN J.
[1] Mr. Oleg Fadeev (the "Applicant") seeks an order staying the operation of a removal order requiring him to leave Canada on October 26, 2000.
[2] The Applicant entered Canada on October 22, 1998 from the United States of America. He was issued a conditional deportation at the time of his entry into Canada.
[3] He made a claim for status in Canada as a Convention refugee status. This claim was denied by the Immigration and Refugee Board, Convention and Refugee Determination Division in a decision dated January 30, 2000.
[4] The Applicant applied for leave to commence an application of Judicial Review of the rejection of his Convention refugee claim and leave was denied.
[5] The Applicant did not seek review of the rejection of his Convention refugee claim via the Post-Determination Refugee claimants in Canada process. In June 2000, the Applicant made an inland application for permanent residence status on humane and compassionate grounds. That application is outstanding.
[6] The Applicant has commenced this application for leave and judicial review relative to the decision of T. Elia, Enforcement Officer, ordering the Applicant to report for removal from Canada to the United States of America on October 20, 2000. This application for judicial review is not directed to the validity of the removal order but to the decision of an enforcement officer to enforce the order.
[7] In the present case, counsel for the Respondent raised a jurisdictional issue and argued that this Court is without jurisdiction to entertain a motion for a stay since the underlying application for judicial review does not challenge the removal order against the Applicant, only its enforcement.
[8] Counsel for the Applicant argued that the issue of jurisdiction should be broadly assessed and referred to the decisions of this Court in Muncan v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 248 and Melo v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 403.
[9] For the purpose of dealing with this motion, I accept the reasoning of Justice Pelletier in Melo v. Canada, supra, and find that there is jurisdiction to hear this motion. Accordingly, the motion must be decided on its merits which require me to consider the tri-partite test for the granting of a stay. The Applicant must show that a serious issue for trial arises from the underlying application for judicial review, that irreparable harm to him will result from denial of the stay, and that the balance of convenience lies in his favour.
[10] The Applicant argues that the serious issue underlying his application for leave and judicial review is whether he is entitled to a risk assessment prior to his removal from Canada to the United States.
[11] I see nothing in the application for leave and judicial review which raises this issue concerning risk assessment. No authority was cited to support the argument that an unsuccessful claimant for Convention refugee status who failed to pursue the Post-Determination Refugee Claimants in Canada process is entitled to a risk assessment prior to removal from Canada pursuant to a presumptively valid removal order.
[12] In my opinion, the Applicant has failed to meet the first part of the test, that is the existence of a serious issue for trial.
[13] In the circumstances, it is unnecessary for me to comment on the issues of irreparable harm and balance of convenience. The motion is dismissed.
[14] Counsel for the Applicant submitted a question for certification. The proposed question is:
| May an applicant move to stay execution of a removal order made against that applicant when the underlying application for judicial review does not challenge the validity of the removal order? |
[15] There is no jurisdiction in this Court to certify a question in connection with an application for leave made pursuant to the Immigration Act, section 82; see Sereno v. Canada (Solicitor General) (1993), 75 F.T.R. 71.
[16] The recent decision of the Federal Court of Appeal in Ge v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1663, Court File No. A-485-98, does not change the position since the Court of Appeal clearly distinguishes between the prohibition against an appeal pursuant to section 82.2 and the certification of a question as a condition precedent to an appeal pursuant to section 83(1) of the Act.
[17] In Ge, supra, the Court found that since there is no right of appeal from a decision upon an application for leave and judicial review, there is no right of appeal of a decision which is incidental to an application for leave. The present motion for a stay is incidental to an application for leave to commence an application for judicial review. That leave application is outstanding. There is no right of appeal arising from my disposition of the motion for a stay, and no question will be certified.
"E. Heneghan"
J.F.C.C.
Toronto, Ontario
October 24, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: OLEG FADEEV |
Applicant
-and-
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
| DATE OF HEARING: MONDAY, OCTOBER 23, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: HENEGHAN J. |
DATED: TUESDAY, OCTOBER 24, 2000
| APPEARANCES BY: Irvin Sherman |
For the Respondent
| SOLICITORS OF RECORD: Martinello & Associates |
Barristers & Solicitors
208-255 Duncan Mill Rd.
North York, Ontario
M3B 3H9
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20001024
Docket: IMM-5440-00
Between:
OLEG FADEEV
Applicant
-and-
CITIZENSHIP AND IMMIGRATION
Respondent
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