Date: 20020516
Docket: IMM-2228-02
Neutral citation: 2002 FCT 574
BETWEEN:
VYACHESLAV ABRAMOV
Plaintiff
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
REASONS FOR ORDER
[1] The following are the detailed reasons for the order which I made on May 15, 2002 dismissing an application to stay the removal of the plaintiff scheduled for that date.
[2] On the same day the plaintiff made an application for leave and judicial review of his application pursuant to s. 114(2) of the Immigration Act (hereinafter "the Act"). His counsel served his application for leave and judicial review at 2:53 p.m., while he received the negative decision in response to the plaintiff's application under s. 114(2) of the Act at 4:00 p.m.
POINT AT ISSUE
[3] Should the Court grant the stay requested in the circumstances of the case at bar?
[4] I do not think it should.
FACTS
[5] In 1991 the plaintiff came to Canada by boat six times and left without claiming refugee status.
[6] On January 26, 1992 the plaintiff arrived in Canada and on June 2, 2002 claimed refugee status.
[7] On August 18, 1993 a conditional departure order was made against the plaintiff.
[8] In December 1994 he was informed that the Refugee Division would hold a hearing on abandonment concerning him since he had not filed his Personal Information Form.
[9] On August 18, 1997 the Refugee Division rejected the plaintiff's claim because he was not credible. That decision was not challenged in the courts.
[10] On September 18, 1997 the plaintiff filed an application as a member of the post-determination refugee claimants in Canada class. On August 13, 1999 the review officer dismissed the application. That decision was not challenged in the courts.
[11] On September 19, 1999 the plaintiff was informed he had to leave Canada by September 19, 1999 at the latest. As he is still here, this order became executory on September 20, 1999.
[12] On October 4, 1997 the plaintiff married a Canadian citizen and on October 20 of that year an application was filed on his behalf for an immigrant visa waiver on humanitarian grounds. That application was dismissed on June 6, 1998.
[13] On March 18, 1999 a divorce decree was issued dissolving the plaintiff's marriage to the Canadian citizen.
[14] On May 18, 2000 the plaintiff was taken into custody as he did not cooperate with departure arrangements.
[15] On September 19, 2000 inquiries were made to send the plaintiff to Cuba at his request. However, the Cuban authorities refused.
[16] On November 29, 2000 the plaintiff was released, but on certain conditions, in particular that he cooperate with departure arrangements.
[17] On April 25, 2001 the plaintiff filed another visa waiver application and on May 30 of that year the application was dismissed as he had not shown that he ran any risk by returning to his country.
[18] On August 20, 2001 the plaintiff signed a new immigrant visa waiver application which he filed with a law enforcement officer in Montréal on August 30, 2001. It appears that there was some confusion and a delay occurred in processing this waiver application.
[19] On September 27, 2001 the plaintiff told an Immigration officer he intended to leave for Israel. He was given additional time to make the necessary arrangements.
[20] Two detailed decisions while the plaintiff was in custody, namely that of December 10, 2001 by Rolland Ladouceur and another by Denise Lapointe on January 16, 2002, clearly indicated that the plaintiff had no intention of cooperating with the authorities in leaving Canada. I refer here to certain relevant passages from Denise Lapointe's decision at p. 6:
[TRANSLATION]
I will start with January 4, 2002.
Three officers took you to the Russian consulate to sign a travel document.
You even refused to get out of the car. The consul himself had to come out and meet with you in the car.
You told the consul you were refusing to return to Russia and that you did not want to sign.
According to Ms. Lagacé, you even said you did not want to go back because it was too cold and you had no money.
[21] Exhibit DP-4 indicated that the law enforcement officer, Daniel Paquin, arranged a meeting at the Russian consulate on May 2, 2002 and the plaintiff finally signed his travel document. At that time the officer also asked him if he had filed the missing documents for his application to live in Israel and he said he had. However, a representative of the Centre Aliyah confirmed that the plaintiff had not submitted the documents.
[22] The following day, on May 3, the plaintiff was taken to the airport to leave for Russia and the plaintiff categorically refused to leave. He was placed in custody until his departure, scheduled for May 15, 2002. The plaintiff was therefore in custody for about six months in the year 2000, again from December 6, 2001 to February 14, 2002, and for a third time as described earlier.
PLAINTIFF'S ARGUMENTS
[23] The plaintiff alleged that the decision of May 14, 2002 was made a few hours after the service of his application for a stay and judicial review and was arranged so the Court would not lack jurisdiction to decide the stay.
[24] The plaintiff also argued that despite the decision of May 14, 2002 the Court should grant a stay so he could obtain his documents and leave for Israel. He should be able to obtain them by June 14, 2002 at the latest, according to a letter sent to me by counsel for the plaintiff and dated March 14, 2002.
[25] The plaintiff further maintained that he met the three tests in Toth v. Canada (M.E.I.), [1988] F.C.J. No. 587 (F.C.A.).
DEFENDANT'S ARGUMENTS
[26] The defendant drew my attention to the facts of this case as a whole. The facts are conclusive and indicate that the plaintiff has never cooperated and has used all kinds of pretences to avoid being sent back to Russia.
[27] He stated that the Court had no jurisdiction in view of the decision of May 14, 2002, which was to resolve the debate.
[28] In conclusion, the plaintiff presented no evidence of a serious question or irreparable harm and the balance of convenience favoured the Minister.
ANALYSIS
[29] After a careful study of the documents submitted by the parties, I find that in fact the plaintiff never intended to return to Russia despite a deportation order dating from 1999.
[30] In September 2001, when the plaintiff was at large, he had already indicated his intention to leave for Israel. Although according to the letter filed by the plaintiff the usual time to obtain the necessary documents is about three months, and even if I accepted that document as good evidence, it still dates from March 14, 2002. The result is that the plaintiff took no action regarding his case, was negligent and made it clear that he did not intend to leave Canada.
[31] The date of the decision of May 14, 2002 dealing with the second application under s. 114(2) of the Act strikes me as somewhat strange, but as the application was sent to Montréal instead of Vegreville, this may explain the confusion that was created and the delay in processing the waiver application. Paragraph 19 of the law enforcement officer's affidavit is persuasive on this point.
[32] Accordingly, the plaintiff did not present evidence of a serious question.
[33] As he was not able to persuade the Court on the first test, I do not intend to discuss the other two tests in Toth, supra.
[34] Consequently, this application for a stay must be dismissed.
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Michel Beaudry
Judge
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OTTAWA, ONTARIO
May 16, 2002
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-2228-02
STYLE OF CAUSE: VYACHESLAV ABRAMOV and THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Ottawa, Ontario, by teleconferencing call
DATE OF HEARING: May 15, 2002
REASONS FOR ORDER BY: MICHEL BEAUDRY
DATED: May 16, 2002
APPEARANCES:
Lucrèce M. Joseph for the plaintiff
Michel Synnott for the defendant
SOLICITORS OF RECORD:
Lucrèce M. Joseph for the plaintiff
Montréal, Quebec
Department of Justice for the defendant
Montréal, Quebec
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